Introduction: The Lord Bishop of Exeter

Robert Ronald, Lord Bishop of Exeter, was introduced and took the oath, supported by the Lord Bishop of Ely and the Lord Bishop of Derby, and signed an undertaking to abide by the Code of Conduct.

Introduction: The Lord Bishop of Liverpool

Paul, Lord Bishop of Liverpool, was introduced and took the oath, supported by the Lord Bishop of St Albans and the Lord Bishop of Manchester, and signed an undertaking to abide by the Code of Conduct.

Levelling Up White Paper
 - Question

Lord Young of Cookham: To ask Her Majesty’s Government when they will publish their white paper on levelling up.

Lord Greenhalgh: We aim to publish by the end of the year. However, our priority is to have a White Paper which meets the scale of ambition and sets out our transformative agenda to deliver real long-term change across the United Kingdom. Levelling up is at the heart of this Government’s agenda to build back better after the pandemic. The recent spending review showed the significant action we are already taking to empower local leaders, boost living standards, spread opportunity and restore local pride.

Lord Young of Cookham: My Lords, I welcome the Government’s commitment to levelling up and to reducing some of the inequalities in our country. But if levelling up is to be more than a slogan, does it not need clearly stated objectives, transparency in the allocation of resources, and measurements so that we can monitor progress? Is my noble friend able to tick those three boxes?

Lord Greenhalgh: My Lords, in July, the Prime Minister set out that we will have made progress in levelling up when we have begun to raise living standards, spread opportunity, improved our public services and restored people’s sense of pride in their community. The forthcoming White Paper will set out the further detail, so that I hope we will be able to tick my noble friend’s three boxes.

Baroness Lister of Burtersett: My Lords, as the official Social Mobility Commission has made clear, levelling up is about people as well as places. Why therefore, to quote the commission, is England the only nation in the UK without a strategy to address child poverty?

Lord Greenhalgh: My Lords, levelling up covers all these issues. We have an approach to child poverty and take those issues very seriously indeed. More detail on these and other matters will of course be outlined in the forthcoming White Paper.

Baroness Bull: My Lords, further to the question of the noble Lord, Lord Young, on criteria, I note that the levelling-up fund, the towns fund and the community renewal fund all prioritise GVA over income deprivation as a metric to rank places according to need. This can lead areas with low economic output but affluent households to rank above places with high-value employment but low local incomes. Will the White  Paper clarify whether the priority for levelling up is to help the poorest people wherever they live or to target the least productive localities? How do the Government want to be judged—on how individuals are faring, or on how far left-behind areas improve?

Lord Greenhalgh: My Lords, we need to understand that different funds have different priorities. The £4.8 billion levelling-up fund seeks to improve infrastructure and productivity, while the UK shared prosperity fund will deal with the issues around skills and replaces much of the funding that we saw through the EU structural funds. We need to see that in the round and, of course, the White Paper will provide further detail.

Baroness Redfern: My Lords, with the much-awaited publishing of the White Paper on levelling up, growing the private sector is what we all want to see in progress. As we see businesses planning at record levels of digital investment, does the Minister agree that priority must be given to reforming the skills system to better align with employers’ demands because of the acute skills shortage?

Lord Greenhalgh: I agree entirely with my noble friend. We do not want anyone to have to leave somewhere they love in order to have a truly fulfilling career. That is why we are investing £3.8 billion in skills by 2024-25 and have just set up our new adult numeracy programme, Multiply, to get hundreds of thousands more adults with functional numeracy skills across the United Kingdom.

Baroness Thornhill: Minister, successive Governments have grappled with this one under various names and the consensus is that they have largely failed. Do the Government recognise that the fragmented system of funding and bidding is part of this failure? Recently, the LGA found evidence that £23 billion of public funds aimed at regeneration were fragmented across 70 different funding streams and managed by 22 different departments or agencies. Are there any signs that the Government will change this scattergun approach?

Lord Greenhalgh: My Lords, just because previous Governments have failed does not mean that this Government will not succeed. However, I take on board the importance of ensuring that there is appropriate streamlining and that we do not have a scattergun approach to funding. The point is well made.

Baroness Finlay of Llandaff: I declare my role as chair of the Commission on Alcohol Harms. Have the Government included alcohol harm as the top priority in the levelling-up agenda, given that, regarding place, alcohol-related mortality is over 20% higher in the north-east of England than the English average? Alcohol-related violence is up to five and a half times more prevalent in lower socio-economic groups, and alcohol consumption is linked to poorer child development and poorer general well-being.

Lord Greenhalgh: My Lords, I expected this Question to go in any number of directions. It is important to address the barriers for people getting on  in life. We are looking to spread opportunities and, of course, we need to address issues such as alcohol harm, which the noble Baroness has raised.

Baroness Blake of Leeds: I declare my interest as a vice-president of the LGA. Will income disparity be addressed in the forthcoming White Paper, given that people in London are paid £16,150 more per year on average than people in Burnley? Do the Government plan to level up wages?

Lord Greenhalgh: My Lords, I am not sure that is the way to think about these problems. We need to recognise that, as well as the income disparity, there is the cost disparity. Admittedly, living in a great capital city comes at a price. We want to level up some of the areas that have been left behind. That does not mean we want a reduction in income in places such as London. We need to ensure that we lift all boats—that is the philosophy behind levelling up.

Baroness Tyler of Enfield: My Lords, does the Minister agree that financial inclusion—that is, ensuring that people have access to essential banking services and financial products that are fairly priced—is particularly important for areas that the Government are looking to level up, and that incorporating a clear financial inclusion strategy into the levelling-up agenda could make a big difference? Can the Minister say whether Treasury and DWP Ministers who lead on financial inclusion are part of the Government’s levelling-up agenda?

Lord Greenhalgh: My Lords, financial inclusion is very important in particular areas, and it is important in addressing it to bind together different departments. That is why there is a new levelling-up task force under the leadership of Andy Haldane that brings together the Department for Levelling Up, Housing and Communities and the Cabinet Office, precisely because we need that Whitehall join-up.

Lord Adonis: My Lords, can the Minister tell the House how he believes that levelling up can be squared with cancelling the eastern leg of HS2? Is he aware that if HS2 East is cancelled, it will take four times longer to get to Sheffield and Leeds, and six times longer to get to Durham and Newcastle, than it takes to get to Birmingham? Does he appreciate that this will introduce a new east-west divide into the country, which will be the equivalent of our Victorian forebears deciding to build the railways in the western part of the country while leaving the eastern part of the country with the canals?

Lord Greenhalgh: My Lords, I recognise the noble Lord’s expertise on high-speed rail. However, I do not want to comment on the specific scheme. The most important thing for the Government is to back up the investment we have in transport infrastructure in our city regions, and we have committed £5.7 billion for transport settlements for those regions. Of course, decisions about high-speed rail will be taken in due course.

Nagorno-Karabakh
 - Question

Baroness Cox: To ask Her Majesty’s Government what assessment they have made of (1) reports of violations of the Nagorno-Karabakh ceasefire agreement by the government of Azerbaijan, and (2) the number of Armenian military and civilian personnel who have yet to be released by the government of Azerbaijan.

Lord Goldsmith of Richmond Park: My Lords, the Minister for Europe and Americas has repeatedly highlighted the need for both countries to avoid provocative actions. She has also raised the long-standing issues of prisoners of war, detainees and the missing or deceased in calls with both Azerbaijani Foreign Minister Bayramov and Armenian Foreign Minister Mirzoyan. We urge both Governments to engage in substantive negotiations to settle all matters relating to the conflict.

Baroness Cox: My Lords, I thank the Minister for his reply, but the impunity enjoyed by Azerbaijan has encouraged continuing violations of the ceasefire agreement by Azerbaijan. As Azeri forces continue to advance into Armenian territories, a few weeks ago I visited a village, Davit Bek, in Syunik province, and witnessed the suffering of the Armenian people there. Azerbaijan also refuses to release Armenian prisoners, subjecting many to torture and killing. What will Her Majesty’s Government do to require Azerbaijan to stop violations of the ceasefire agreement and of human rights?

Lord Goldsmith of Richmond Park: My Lords, the UK has engaged very actively both during and after the conflict. The Minister for Europe and Americas, Wendy Morton, speaks regularly with her counterparts in both countries. She continuously urges de-escalation and a return to the negotiating table under the auspices of the OSCE Minsk Group, and she has condemned the alleged war crimes, including the deliberate shelling of civilian areas, videos purportedly showing beheadings of soldiers, and alleged deliberate use of white phosphorus against civilians. The allegations come from both sides in this conflict.

Bishop of Coventry: My Lords, in June, I visited the border inclusion area of Syunik province, at an earlier stage than the noble Baroness, Lady Cox. In Khoznavar, the incursion had cut off the nearby village from its main water source, and access to grazing land had been denied, threatening the survival of this poverty-stricken village. Following my letters of 7 July to the Foreign Secretary and of 5 November to the Minister for Europe and Americas, what further steps are Her Majesty’s Government taking to challenge those illegal incursions, to ensure the integrity of Armenia’s borders and to press for the withdrawal of Azerbaijani troops according to the terms of the November 2020 ceasefire?

Lord Goldsmith of Richmond Park: My Lords, the UK notes the ceasefire agreement reached in November last year. Both countries had to make difficult decisions to secure stability and peace, and it is important that remaining issues relating to the conflict are resolved through negotiation. In particular, the OSCE Minsk Group is the obvious and key forum for this, facilitated by France, Russia and the US. The UK is not a formal member of the OSCE but we continue to support its efforts to negotiate a permanent and sustainable settlement.

Lord Risby: My Lords, for years, one of the major causes of tension and violence has been the lack of a clear and mutually acceptable demarcation of the international border. Although the border agencies of both Armenia and Azerbaijan are now in contact, given our close connections in the region, have we considered assisting or promoting this vital process, which is essentially technical, on the basis of clear international principles?

Lord Goldsmith of Richmond Park: My Lords, as I said, the UK supports the OSCE Minsk Group process and, alongside that, the basic principles. Last updated in 2009, these include a return of the occupied territories and the acceptance of a free expression of will on the status of the Nagorno-Karabakh region.

Lord Kilclooney: My Lords, I just returned at the weekend from a visit to Karabakh, where I saw thousands—yes, thousands—of homes which had been demolished or vandalised by the occupying troops over the last 30 years. First, can the Government now confirm that they recognise that Karabakh is part of Azerbaijan? Secondly, were all the Armenian prisoners of war captured before the ceasefire released by Azerbaijan? Thirdly and finally, have either the Russian peace observers, whom I saw, or the Minsk Group reported any breach of the ceasefire by Azerbaijan, and will Her Majesty’s Government continue to encourage UK investment in Azerbaijan, including Karabakh, now that it has been liberated?

Lord Goldsmith of Richmond Park: My Lords, I will not repeat the last answer, relating to recognition of the Nagorno-Karabakh region, but in relation to the ongoing conflict, the UK Government continue to raise at every opportunity the critical importance of settling all matters related to the conflict, in particular last year’s conflict, with the Armenian and Azerbaijani Governments. That includes, for example, the return of all prisoners and the remains of the deceased, which has been a particular focus of the Minister for Europe and Americas, Wendy Morton, who has raised this repeatedly with her counterparts.

Lord Browne of Ladyton: My Lords, on the first anniversary of the ceasefire, the US State Department statement, as well as listing all of the humanitarian issues that are supported by allegations on both sides of this—the Minister has referred to almost all of them—expressly called for an investigation into alleged human rights abuses and violations of international humanitarian law. Do the Government support that  call and, if so, have they discussed it with the United States, and how do they intend to advance this really important initiative?

Lord Goldsmith of Richmond Park: My Lords, the UK Government are of course aware of allegations that war crimes were committed by both sides during last year’s conflict. There is credible evidence for that. My colleague Wendy Morton, Minister for Europe and Americas, has raised this issue with both Governments, and she has urged that those allegations be thoroughly investigated. Where we can, we support the trilateral OSCE on a regular basis.

Lord Flight: My Lords, Azerbaijan has handed over, bona fides, Armenian POWs who had been detained during the course of hostilities, but the cessation of hostilities provides huge opportunities to reopen transportation and communication routes between Azerbaijan, Armenia and the Zangezur corridor. Once fully operational, this could provide inter-and transregional trade and economic connections, bringing significant benefits for Armenia’s own economic development. Will HMG consider encouraging the Armenian Government to seize this opportunity to ensure that the transport corridor is reopened?

Lord Goldsmith of Richmond Park: The noble Lord makes an important point. Of course, we continuously urge both the Armenian Government and the Azerbaijani Government to honour in full the agreement reached last year. That is why our support for the OSCE Minsk Group is also important: the opportunities for both countries in a lasting settlement are enormous, as he rightly says.

Lord Hussain: My Lords, what representations do the UK Government intend to make to the Government of Armenia to encourage the latter to fulfil its obligations under the 10 November bilateral ceasefire agreement—specifically to fully withdraw its troops from the Azerbaijan Nagorno-Karabakh region, where the Russian peacekeepers are currently stationed, and to reverse its lack of co-operation with Azerbaijan in helping with the opening of communication and transportation routes?

Lord Goldsmith of Richmond Park: The UK Government have not made a full assessment of the impacts of the Russian peacekeeping efforts, but this is an area that my colleagues in the other House keep under regular review.

Baroness Eaton: My Lords, will the Minister make urgent representation to the Government of Azerbaijan to allow UNESCO to investigate all Armenian cultural and religious sites to ensure their physical preservation, and to guarantee the rights of Armenian clergy and religious communities to continue to run and live in them?

Lord Goldsmith of Richmond Park: The Government strongly support the noble Baroness’s appeal for full access and full transparency, in relation both to cultural heritage and the allegations that have  been made, and to the International Committee of the Red Cross, which does not currently have full access to all prisoners of war. That is something that we are pushing hard for.

Lord Collins of Highbury: My Lords, six months ago, I raised with the noble Lord, Lord Ahmad, the fact that Russia had taken significant control over the administration of Nagorno-Karabakh. Last week, a Russian news agency suggested that the Armenian President wanted the Russian army to remain for good. What assessment has his department made of this move, and what impact will it have on security in the region?

Lord Goldsmith of Richmond Park: As I said, the UK has not yet made a full assessment of the deployment of the Russian peacekeepers, but deployment of peacekeepers clearly has to have the support of both parties to the conflict, or the aims become almost impossible to achieve.

Lord McFall of Alcluith: My Lords, the time allowed for this Question has elapsed.

Charities: Landmines
 - Question

Lord Campbell of Pittenweem: To ask Her Majesty’s Government what plans they have to provide funds to charities based in the United Kingdom that work to remove landmines and dismantle improvised explosive devices in other countries.

Lord Goldsmith of Richmond Park: My Lords, over the next three years, the UK’s demining work will continue to save lives, limbs and livelihoods across the world, supporting those most in need and delivering our treaty commitments. The Global Mine Action Programme 3, due to begin in 2022, will involve landmine clearance and risk education to help affected communities keep safe, and capacity development to help national authorities manage their landmine contamination. We are currently working towards finalising funding and country allocations for this programme.

Lord Campbell of Pittenweem: My Lords, I declare my interest as an ambassador for HALO, which has an agreement with the Taliban to continue to carry out mine and IED clearance in Afghanistan. It employs 2,500 locally engaged staff with financial support from Germany and the United States for this work. However, there is no support from the United Kingdom. Why not?

Lord Goldsmith of Richmond Park: My Lords, in Afghanistan, since 2018, the FCDO’s funding to UNMAS has cleared landmines and unexploded ordnance in 27.2 square kilometres of land. It has released a further 211 square kilometres of land by assessing it as  no longer being dangerous. That has directly benefited nearly 1.5 million people. UNMAS has also delivered landmine-risk education to at least 1.2 million people, including more than 450,000 women and girls. The UK has a long track record in Afghanistan.

Lord Trefgarne: My Lords, a long time ago, back in 1982, while the Argentinians had a short occupation of the Falkland Islands, they laid a number of landmines there. These were mostly still there when we retook the islands a few months later. What is the present position? Is everything now safe?

Lord Goldsmith of Richmond Park: I thank the noble Lord for his question. I shall have to write to him with an answer on the current assessment.

Lord McDonald of Salford: My Lords, in September, the United Kingdom assumed the presidency of the Convention on Cluster Munitions. Since then, the FCDO has removed funding for mine-clearance operations in Vietnam, South Sudan and Zimbabwe, some of the countries worst blighted by cluster munitions and landmines. Will the Minister explain how this decision will help the UK achieve its objective of the universal application of the convention? From outside, it looks as though we are failing to put our money where our mouth is.

Lord Goldsmith of Richmond Park: The noble Lord is right that the funding has currently been reduced in relation to demining. The Global Mine Action Programme, which I mentioned earlier, will begin next year. We are reviewing funding and country allocations and hope to be able to share our plans for the programme in due course.

Lord Dubs: My Lords, further to the last question, is not the truth that the cut in our support for clearing landmines, cluster bombs and cluster munitions will result in thousands of people either being killed or having their legs blown off? How can we justify such a cut?

Lord Goldsmith of Richmond Park: My Lords, the UK has invested really significant sums; it is one of the most generous countries in the world when it comes to funding demining. We have saved, as a consequence of taxpayers’ contributions to programmes backed by the Foreign Office, the lives of many, many hundreds of thousands of people. As I said, the FCDO recognises how critical this work is. That is why we are reviewing the decisions that were made: we are reviewing funding and country allocations and we will come back with details as soon as possible.

Lord Oates: My Lords, I declare my interest as co-chair of the Zimbabwe APPG. I may be able to help the Minister with the answer to the question from the noble Lord, Lord Trefgarne. Last year, landmine clearance in the Falkland Islands was completed, with Minister Wendy Morton paying particular tribute to the brilliant contribution of the team of Zimbabwean deminers. In the context of this assistance, does the Minister recognise that it is absolutely unacceptable for the Government to cut entirely our mine-action  funding to Zimbabwe, which has some of the densest and most dangerous minefields in the world? Will he review this decision and restore funding so that Zimbabwe can meet its goal of being landmine-free by 2025, and will he meet me to discuss this matter?

Lord Goldsmith of Richmond Park: My Lords, as I said in answer to the previous two questions, we are reviewing the funding decisions. We are reviewing country allocations and we will come back with figures when we can. No one disputes the importance of this work to people’s lives and to the stability of countries. Yes, I would be very happy to meet the noble Lord.

Lord Collins of Highbury: I think it is worth repeating this really important point so that the Minister hears: there has been a 75% cut in our landmine clearance work. That will result in deaths. While the Minister is waiting for another nine months, many children and women will be killed as a consequence of this action. It is no good talking about the past; it is the future we are concerned about. Will he, therefore, go back to his department and say, “Restore these cuts now”?

Lord Goldsmith of Richmond Park: My Lords, the department is currently—not in nine months—reviewing funding decisions in relation to demining. As I said, none of my ministerial colleagues and no one in the foreign office disputes the importance of this work. Every penny that we put into this programme is a penny that will contribute to saving lives and we are very aware of that.

Lord Lancaster of Kimbolton: My Lords, as a qualified bomb disposal officer, this is an area in which I have some experience. I confirm that it is difficult, dangerous and challenging work, and often poorly paid. The HALO Trust is an exemplar, offering a five-week training package. I witnessed its people finishing clearing the Falkland Islands back in 2019. What assurances has the department put in place to ensure that all charities offer appropriate training packages for their workers and—crucially, should the worst happen—appropriate insurance and compensation packages for their workers as well?

Lord Goldsmith of Richmond Park: I thank the noble Lord for his question and for his work in this area. All FCDO contracts and NGOs are held to the highest standards. GMAP 2 partner organisations have robust training and monitoring processes in place to ensure the safety of their staff and of the beneficiaries. The FCDO conducts due-diligence assurance checks on all areas of their work, including staff training and safeguarding before any funding is released.

Lord Browne of Ladyton: My Lords, in April 2017 the then International Development Secretary, Priti Patel, standing alongside Prince Harry at a Landmine Free 2025 event, announced the UK’s funding commitment and said of humanitarian demining:
“Global Britain has a historic role in tackling the indiscriminate and lethal legacy of landmines … We have a moral duty to act - and it is in our national interest to act.”
Until we discharge that moral duty and until it is no longer in our interests, we should not reduce our investment in either of them by one penny.

Lord Goldsmith of Richmond Park: My Lords, the UK remains a leading donor in this sector, notwithstanding the recent cuts, and our demining work will continue to save lives. We are committed to all of our international treaty obligations. We are finalising our plans for GMAP3—the global mine action programme. As I said a few times, we will release details as soon as we can.

Baroness Sugg: My Lords, it has been only in the last few weeks that NGOs have heard that the cuts they will face will be between 75% and 80%, so I welcome the confirmation from my noble friend the Minister that this is being reviewed. Could he tell me when this review will be completed and assure the House that we will be informed of its findings?

Lord Goldsmith of Richmond Park: I thank the noble Baroness for her question. I will have to get back to her in writing when I have a date that I can share.

Lord Jones of Cheltenham: The Indo-Pacific is a region that is heavily contaminated with landmines and unexploded bombs, and is set to lose UK funding despite the Government’s ambition to strengthen their relations and influence there. In fact, Vietnam will no longer receive any funding at all. What assessment has been made of the impact this will have on UK relations in this region? Will the Government commit today to reinstate Vietnam’s funding to rid that country of its dreadful mine legacy?

Lord Goldsmith of Richmond Park: The legacy in Vietnam of live mines that are still in place is appalling, of course. I know that our funding has been valued by the Vietnamese Government and the Vietnamese people, and has helped to support wider diplomatic objectives. I cannot make any commitments on funding today, other than to say that those decisions that were recently made are being reviewed. I hope they will be reviewed as quickly as possible and that we will be able to continue the work that this House is rightly proud of.

Lord Robathan: My Lords, some 15 years ago I was chairman of the Halo Trust, which has been mentioned, and a very good organisation it was too. I was also on the DfID Select Committee for some six years. I have seen that not all international aid from Britain is well spent: a lot of it ends up in overseas bank accounts, fast cars and weaponry. However, the Halo Trust got the money and spent it on exactly what it said it would. I plead with my noble friend, when the Government review it, to look at what is achieved. I saw the Halo Trust achieving fantastic things around the world.

Lord Goldsmith of Richmond Park: The noble Lord is right. There will never be enough public money to resolve the various issues we are committed to help resolve around the world—this being an important  one, but just one. It is incumbent on us to ensure that, when we invest money, it is invested as well as it can be. The point he makes about the Halo Trust is a view that I know is shared by colleagues in the Foreign Office. I will convey his words back to colleagues.

Lord McFall of Alcluith: My Lords, all supplementary questions have been asked, and we now move to the next Question.

Islamophobia
 - Question

Lord Sheikh: To ask Her Majesty’s Government what is their position on adopting a formal definition of Islamophobia.

Lord Greenhalgh: The Government remain committed to acting against Islamophobia in all its forms. We utterly condemn the prejudice, discrimination and hatred directed towards British Muslims due to their faith. While we are considering definitions of Islamophobia, this in no way restrains our ability to monitor, prosecute and punish those perpetrating religiously motivated hate crime. We have provided Tell MAMA with £4 million over the last five years to monitor anti-Muslim hate crime and to support victims.

Lord Sheikh: My Lords, I thank my noble friend for his response. I first raised this matter in your Lordships’ House on 11 July 2019. We were told then that the Government agree that there needs to be a definition and that two advisers would be appointed. One adviser was appointed more than two years ago and nothing tangible has been done since. The Muslim community is concerned about issues relating to Islamophobia, and would ask that a second adviser now be appointed and their terms of reference agreed, which must include consultation with the community. We need to do this without any further delay and to commence the process.

Lord Greenhalgh: My Lords, I thank my noble friend for raising the concerns of the Muslim community, for his contribution to how we tackle the issue of Islamophobia and for his advice on how best to proceed. We remain committed to tackling Islamophobia where it exists across our communities, and we will continue to consider this issue with the utmost seriousness.

Baroness Blake of Leeds: My Lords, the Government’s own hate crime statistics show that nearly half of all recorded religious hate crimes were against Muslims. What specific urgent steps have the Government taken to end this abuse and will the Minister commit to working with Muslim groups to ensure urgent progress?

Lord Greenhalgh: My Lords, it is quite correct to say “nearly half”—around 45% of religiously motivated hate crime was against Muslims. As I mentioned in my Answer, we provided Tell MAMA £4 million over the last five years to monitor anti-Muslim hate crimes and support victims. We have also awarded £1.8 million through the faith, race and hate crime grant scheme to support established community groups and civil society organisations to boost shared values and tackle religiously and racially motivated hate crime.

Baroness Hussein-Ece: My Lords, the Minister has acknowledged that the Home Office’s own figures show that 45% of all recent recorded religious hate crimes in England and Wales targeted British Muslims, but he has not yet said why the Government are so reluctant and are dragging their feet over coming up with a clear definition of Islamophobia. Why have they refused to do this? Is he aware that it is mainly Muslim women who are being targeted, because of the way they dress? Young people are being targeted and bullied in schools and on the streets. Given the scale of this problem, and given the rise in far-right extremism, can the Minister tell me what actual action, besides funding an organisation to monitor it, the Government will take to reassure the 3 million British Muslims of their commitment to tackling hatred, and the violent crimes and discrimination they are experiencing?

Lord Greenhalgh: My Lords, we recognise the seriousness of this, but we also recognise the point made by Khalid Mahmood MP in the other place that there are issues with the term “Islamophobia”. It has been weaponised by particular groups to tackle free speech. We recognise that it is important to establish a definition, but as he himself says, this is a difficult thing to solve and the first principle is to do no harm. We will proceed slowly and carefully in order to get this right.

Lord Robathan: My Lords, I think the House will be united against anybody who discriminates against somebody on their beliefs, but I will follow up on the last question about what exactly we mean by “Islamophobia”. I understand that it means fear of Islam. Why should one be frightened of one of the great religions of the world? It is fair enough to be frightened of the people who blew up the Manchester Arena or whatever, but surely not of Islam itself. I think the Minister is on my side in this: could we please be absolutely clear what it is that we are trying to do?

Lord Greenhalgh: My Lords, part of the difficulty of adopting some of the definitions that are being proposed, including that proposed by the APPG, is that they effectively conflate anti-Muslim hatred and Islamophobia with race. They also do not deal with issues around sectarianism. I completely agree that we want to tackle prejudice that discriminates against people based on who they are.

Lord Singh of Wimbledon: My Lords, a phobia is a fear. An irrational fear of Muslims is best countered by leaders of the community explaining that discrimination against women and violent attitudes to other faiths have nothing to do with Islam. Will the Minister agree  with a previous government statement that all faiths and beliefs should be given equal protection, and that giving special consideration to one or two groups at the expense of others is totally contrary to the Government’s levelling-up agenda?

Lord Greenhalgh: My Lords, I can give that assurance. We must provide our faiths and beliefs, particularly a religion such as Islam, with the same protections as all other important religions, but we must not make the mistake of conflating religion with race, as I said in the previous answer.

Baroness Fox of Buckley: My Lords, it is crucial that we distinguish between aberrant anti-Muslim bigotry and the highly contentious concept of Islamophobia which threatens free speech for fear of it being labelled Islamophobic. Does the Minister acknowledge this chilling effect for liberal Muslims, as is well described in the Don’t Divide Us film “‘Islamophobia!’ The Accusation that Silences Dissent”, muting any criticism of Islam as a religion and even muting critiques of political Islamism, however dangerous? Does the Minister accept the nervousness of politicians from all parties in supporting the Batley Grammar School teacher who was forced into hiding under shouts of “Islamophobic”, effectively allowing a default blasphemy law to be snuck in for fear of being called Islamophobic?

Lord Greenhalgh: My Lords, I do recognise that issue and I was trying to point that out in the responses I gave to previous supplementary questions. There is no doubt that the term “Islamophobia” is used as a heckler’s veto to shut down alternative opinions. We need to come up with a way forward that does not compromise free speech, and that is absolutely what we are committed to doing.

Lord Mann: Imam Qari Asim, whom the Government appointed to assist with this in 2019, has been a magnificent ally in the fight against anti-Semitism and had a huge impact in West Yorkshire on Covid vaccinations in the Muslim community. Would it not be in the Government’s interests to find more work for Qari Asim to do?

Lord Greenhalgh: My Lords, as someone who has spent time with and engaged with Qari Asim—I met him in my previous role as Faith Minister—I recognise that he has much to contribute and I am sure we will continue to make best use of his undoubted reputation and track record.

Lord Kennedy of Southwark: My Lords, Islamophobia is a real problem in the UK. Prejudice against Islam must be taken very seriously. The Government are certainly proceeding very slowly—there is no question about that—as highlighted by the noble Lord, Lord Sheikh. Can the Minister confirm that it is the Government’s intention to adopt a definition, or are they not planning to do so? It is very easy, either way.

Lord Greenhalgh: My Lords, I always thank the noble Lord for providing me with an easy question. Of course we want to work on establishing a definition that can be adopted, but I want the House to recognise that this is not a straightforward matter and will take time.

Baroness Uddin: My Lords, do the Government recognise that in any attempt to elucidate a formal definition of Islamophobia, religion and not race must be the central tenet? I agree with the noble Lord’s earlier response. Will the Minister give a personal assurance to the noble Lord, Lord Sheikh, me and others that he will do everything he can to resolve this as a matter of urgency?

Lord Greenhalgh: My Lords, I can give the assurance that we are tackling this as a matter of urgency. I completely agree with the point made about the need not to conflate race with religion. We need to get the definition of Islamophobia right.

Nazanin Zaghari-Ratcliffe
 - Private Notice Question

Lord Foulkes of Cumnock: Asked by Lord Foulkes of Cumnock
To ask Her Majesty’s Government what action they are taking to secure the release and return to the United Kingdom of Nazanin Zaghari-Ratcliffe.

Lord Goldsmith of Richmond Park: My Lords, it is unacceptable and unjustifiable that Iran has chosen to continue with this second, wholly arbitrary case against Nazanin. Iran has put her through an inhumane ordeal. We continue to call on Iran in the strongest possible terms to allow her to return to the UK to be reunited with her family. The Prime Minister raised her situation with former President Rouhani, and the Foreign Secretary continues to engage with Foreign Minister Amir-Abdollahian, most recently on 8 November.

Lord Foulkes of Cumnock: My Lords, first, I commend the bravery of Richard Ratcliffe—

Noble Lords: Hear, hear.

Lord Foulkes of Cumnock: —in his determination to get his wife home safe. We understand why he ended his hunger strike, and it was right for him to do so.
Will the Minister now confirm that there is no doubt whatever that the United Kingdom Government owe Iran £400 million for tanks the Iranian Government paid for but which were never supplied? Secondly, when the Prime Minister was Foreign Secretary, he pledged that that debt would be paid, and it is further acknowledged that when it is paid, Nazanin will be released. Can the Minister therefore use his undoubted  influence with the Prime Minister to get him to make it his top priority to resolve this issue and get Nazanin released and returned home to her husband and daughter, because it is the Prime Minister’s moral duty to do so?

Lord Goldsmith of Richmond Park: Like the noble Lord, I recognise the commitment and huge sacrifice that has been shown by Mr Ratcliffe and the families of other British detainees in seeking the release and return of their loved ones detained in Iran. We continue to call on Iran to end Nazanin’s suffering immediately and to allow her to return home to her family in the UK. But I need to be clear, in the place of my colleague and noble friend Lord Ahmad, who is not here to answer the Question, that the UK does not and never will accept our dual nationals being used as diplomatic leverage. Our priority is securing Nazanin’s immediate release so that she can be reunited with her family.

Lord Howell of Guildford: While it is absolutely right that the dreadful detention of Nazanin Zaghari-Ratcliffe should be kept totally separate from other issues in the relationship with the Iranian Government, will my noble friend explain the delays in the payment of the proper debt for the Chieftain tanks that were never delivered? It seems to me a straightforward matter, entirely separate from this horrible detention issue, which surely could be settled, and settled fast. Can he explain what the delay is because we do not understand?

Lord Goldsmith of Richmond Park: As we have said—I know my colleague has said this many times from this Dispatch Box—we are actively exploring the options to resolve this case, but it is not helpful in any way to connect wider bilateral issues with those arbitrarily detained in Iran. It remains in Iran’s gift to do the right thing and to allow British dual nationals home to be reunited with their families.

Lord Purvis of Tweed: My Lords, I have met Richard Ratcliffe and I associate myself and colleagues who have met him with the comments made by the noble Lord, Lord Foulkes. In May, the Foreign Secretary said that the treatment of Nazanin amounts to torture. There is no point in a British Government making clear assertions on the contravention of a UN convention if they do not follow through with any actions. When I asked the noble Lord, Lord Ahmad, why the Government had not formally requested that Iran investigate the accusation of torture, he said that he would ensure that it was in the Foreign Secretary’s briefing pack when she met Richard. Why have the Government not formally requested that Iran act on the convention which it is duty bound to carry through?

Lord Goldsmith of Richmond Park: My Lords, no one disputes that Iran’s treatment of Nazanin and others in similar circumstances is inhumane and cruel, exceeds any normal boundaries of behaviour by a state and is completely unacceptable, but I cannot add more to what my colleague the noble Lord, Lord Ahmad, said in answer to the same question just a few weeks ago.

Lord Judge: Do we owe money to Iran? If we do, why has it not been paid?

Lord Goldsmith of Richmond Park: My Lords, the IMS payment is a long-standing case relating to a historic debt owed to pre-revolution Iran. We continue to explore options, as I said before, to resolve this case.

Lord Lamont of Lerwick: My Lords, I draw the attention of the House to my interests as set out in the register. I totally support what the noble Lord, Lord Foulkes, said. The behaviour of the Iranian Government in this affair is disgraceful, but the Government have not been clear. They have been very ambiguous in answering questions in the House about this issue, including, as was said, in the previous debate in which it was raised. Will the Minister confirm or deny that fear of American sanctions is preventing this money being paid?

Lord Goldsmith of Richmond Park: My Lords, from my vantage point, if I may couch it that way, I am absolutely certain that the premise of the noble Lord’s question and the assumption within it is not correct.

Bishop of Coventry: My Lords, what does the Minister think Governments on both sides might have to learn from a simple prayer that was once prayed on this day in Coventry, after the destruction of the city? It is a simple prayer but a brave one; it simply says: “Father, forgive.” It does not try to forgive the other side, or even to absolve the other side from responsibility, but it does say that, somewhere along the line, both sides, in whatever proportion, need to accept that a very deep hole has been dug and suffering people have fallen into it. In this case, there is a suffering woman at the bottom of the hole, and her husband and child. Can we not do more to accept that there is something we have a responsibility for?

Lord Goldsmith of Richmond Park: My Lords, I do not accept, and the Government cannot accept, that we have a responsibility for the incarceration and appalling treatment of Nazanin. This is a decision made by the Government of Iran, and one that they can reverse. Of course, we will, and we continue to, do as much as we possibly can to secure her release. That is why this issue—this appalling case—has been escalated to the highest level, not least in the form of diplomatic protection, which means that it becomes a case between states as opposed to the prior situation.

Lord Dubs: My Lords, many people still do not understand the issue of the £400 million that we owe to Iran; it keeps getting raised. The Americans have paid money to the Iranian Government despite their sanctions. Can the Minister please explain clearly what is going on? Many of us who have met Richard Ratcliffe on his hunger strike outside the Foreign Office have given him an undertaking that we shall continue to press the Government. This will go on and on until the Government do something.

Lord Goldsmith of Richmond Park: My Lords, the Government are doing something. We are engaging at the highest possible level; whether it is the Prime  Minister or the previous or current Foreign Secretary, engagement happens on a very regular basis. I do not accept the idea that the Government are doing nothing. However, were the Government to pay hundreds of millions of pounds to the Iranian Government, that would undoubtedly be seen as payment for a hostage situation.

Noble Lords: Oh!

Lord Pannick: I am very surprised at the Minister’s answers in relation to the £400 million. Does he accept that an international arbitration tribunal—an independent tribunal—has ruled that this country owes £400 million to the state of Iran? Does he accept that? Does he also accept that it is vital that this country complies with its international obligations to meet international arbitration tribunal reports? Does he also accept that to pay that sum without further delay would be to meet our obligations, and not to pay a ransom?

Lord Goldsmith of Richmond Park: My Lords, no one disputes that there is a historic debt, one which was owed to pre-revolutionary Iran. There is no dispute or debate about that. However, here I am answering a Question about Nazanin, yet the majority of questions relate to that money. The combination of that issue with the issue that we are dealing with—an appallingly tragic human case—is exactly what we should be avoiding. Otherwise, this does become a hostage situation and any payment of any money becomes payment for a hostage. That is not in our international current, medium or long-term interests.

Lord Collins of Highbury: Let us put it a different way. When I met Richard outside the FCDO, he described the policy of the Government as a “policy of waiting”. The Minister has said that they are doing things; well, this House wants to hear precisely what they are doing. One thing this Government should be doing is ensuring that we improve relationships with the Government in Iran—to ensure that all the outstanding issues, including of those who remain in prison, are properly resolved. So what are the Government doing?

Lord Goldsmith of Richmond Park: The Government certainly want to improve our relationship with Iran. In direct answer to the noble Lord’s questions, we have raised this case at the highest levels of government at every opportunity. The Prime Minister raised it with President Rouhani on 10 March this year. The previous Foreign Secretary engaged regularly with Foreign Minister Zarif. The current Foreign Secretary, who has been in post for only a few weeks, has spoken twice now with her counterpart, most recently just a week and a half ago. Our ambassador and the wider team continue to lobby Iranian interlocutors at every opportunity. They helped to secure the release of Nazanin on furlough and continue to push for a full and permanent release, most recently on 9 November. As I said earlier, escalation in the form of diplomatic protection on 7 March 2019 represented a formal recognition that her treatment breaches Iran’s obligations under international law and raises the status of this case to the highest possible level.

Baroness Jones of Moulsecoomb: My Lords—

Lord Carlile of Berriew: My Lords—

Baroness Jones of Moulsecoomb: Can we hear from a woman for a change?

Lord Carlile of Berriew: My Lords, does the Minister agree that one of the ambitions of this country is that Iran should adhere to the rule of law? If so, should we not be adhering to the rule of law—and, therefore, will he now give us a very clear “yes” or “no” reply to my noble and learned friend Lord Judge’s very straightforward question, which he has yet to answer?

Lord Goldsmith of Richmond Park: Yes, of course, it is in everyone’s interest that Iran as a country adheres to the rule of law, just as the UK does on a routine and permanent basis.

Baroness Jones of Moulsecoomb: My Lords, the Government do have some responsibility for the suffering that Nazanin is experiencing because our Prime Minister told a lie that she was teaching journalism. That meant that the Iranian Government were much more exercised about her presence in Iran when, in fact, she was only there to see her family. Has the Prime Minister shown any remorse?

Lord Goldsmith of Richmond Park: The Prime Minister continues to engage on this issue with his counterpart, as does the entire FCDO. The Government continue to prioritise this case, as I have relayed to the House, and will continue to do so.

Lord Cormack: My Lords, will my noble friend the Minister not accept that the answers that he is giving this afternoon—stonewalling answers—are doing no good to the Government and, most of all, no good to Nazanin Zaghari-Ratcliffe? Can we please accept that this country does owe this money? Can it not be paid immediately to the United Nations? That would be a good way of having it transferred. Can we not have a positive move to get back this poor woman, who has been tortured and incarcerated as an innocent being?

Lord Goldsmith of Richmond Park: My Lords, at the risk of being repetitive, it would be a grave error for this Government to behave as though that historic debt is in any way connected to the incarceration of Nazanin, in the manner in which the noble Lord suggests. It would be disastrous foreign policy.

Lord Campbell of Pittenweem: My Lords—

Baroness Uddin: My Lords—

Viscount Stansgate: My Lords—

Lord Ashton of Hyde: It is the turn of the Liberal Democrats.

Lord Campbell of Pittenweem: My Lords, the problem is that the Iranians regard the two as linked. If we will not accept that, how is the difficulty to be resolved? The Prime Minister made a very foolish intervention; one might think that that increases his moral obligation. If there is any question of the Government being in some way concerned about the attitude of the United States, does anyone here think that the United States would hesitate for a moment if the circumstances were reversed? There is, not least, very strong anecdotal evidence that President Obama did exactly that: release in return for resources.

Lord Goldsmith of Richmond Park: My Lords, if it is the case that Iran conflates these two issues—and I think the noble Lord is right to say that it does—that is even more reason why we should not allow dual nationals to be used as diplomatic leverage.

Hereditary Peers By-election
 - Announcement

The Clerk of the Parliaments announced the result of the by-election to elect a hereditary Peer in place of Viscount Simon.
Two hundred and sixty-four Lords submitted valid ballot papers. A notice detailing the complete results is available in the Printed Paper Office and online. The successful candidate was Lord Hacking.

Lord Grocott: I am grateful to our Clerk for acting as returning officer and giving us the result of another dramatic by-election. Normally, when by-election results are passed on, the resulting great excitement and drama are watched by the national media, but I have noticed that throughout this by-election process the House has remained calm, and that is to be commended.
One of the numerous reasons why there is no further interest in the by-election once the name of the winner has been announced is that in normal by-elections—if I can refer to them as such—the returning officer, in a scene familiar to all of us, not only announces which individual has won the by-election but goes on to announce the figures for all the other candidates too, whereas in our unique system we learn who the winner is but if we want to find out any more, such as how many votes our candidate attained, you are referred to the Printed Paper Office. I do not think it would work in by-elections as they normally apply if the returning officer announced who had won and then said, “If you want to know who got how many votes, you need to go to the council offices tomorrow morning where a paper will be issued with the details.”
I suggest that we add a bit more detail to these announcements. Why not give the individual results for the candidates, the number of spoilt ballot papers and details of that sort, and maybe allow two or three minutes for the victorious candidate to make a short speech thanking—

Lord Tomlinson: Thanking the returning officer!

Lord Grocott: Yes—thanking the returning officer and commiserating with the other candidates. I think that would enhance the by-elections and our understanding of them. Maybe, if we really wanted to analyse their significance, perhaps a room could be set aside where an analysis of the result could be presented by Professor Sir John Curtice, who is an expert in these things.
The House may know that I am not a fan of these by-elections, so maybe we should have a bit of sunshine on the results in future. This would aid public interest in them and I am sure that supporters of these by-elections—there are a few left—would like to see a bit more detail presented. I think this is something that the Procedure Committee should consider.

Business of the House
 - Motion on Standing Orders

Lord Ashton of Hyde:: Moved by Lord Ashton of Hyde:
That Standing Order 38(1) (Arrangement of the Order Paper) be dispensed with on Wednesday 17 November to enable the third reading of the Professional Qualifications Bill [HL] and the continuation of the Committee stage of the Police, Crime, Sentencing and Courts Bill to be taken before oral questions that day.

Lord Ashton of Hyde: My Lords, I beg to move this Motion on behalf of my noble friend the Leader of the House. In doing so, I shall make a short statement about the arrangement of business on Wednesday.
The House will meet at 11 am. After Prayers we will take the Third Reading of the Professional Qualifications Bill followed by the continuation of the Committee on the Police, Crime, Sentencing and Courts Bill. Proceedings will adjourn at around 2 pm and then resume at 3 pm for Oral Questions. We will then continue with the Police, Crime, Sentencing and Courts Bill Committee. The Grand Committee will meet at its usual time of 4.15 pm.
Motion agreed.

Telecommunications (Security) Bill
 - Commons Reasons

Motion A

Lord Parkinson of Whitley Bay: Moved by Lord Parkinson of Whitley Bay
That this House do not insist on its Amendment 4, to which the Commons have disagreed for their Reason 4A.
4A: Because the Commons consider it appropriate and sufficient for oversight and scrutiny of decisions made by the Secretary of State for DCMS in relation to telecommunications diversification to be conducted by the departmental select committee.

Lord Parkinson of Whitley Bay: My Lords, noble Lords will recall that this Bill will create one of the toughest telecoms security regimes in the world and ensure the security and resilience of the UK’s telecommunications networks and infrastructure.
Amendment 4, which was tabled by the noble Baroness, Lady Merron, and the noble Lords, Lord Alton of Liverpool and Lord Fox, would insert a new clause into the Bill. The clause would require the Secretary of State to report on the impact of the Government’s diversification strategy on the security of telecommunication networks and services, and would allow for a debate in another place on the report.
I ask that this House do not insist on its amendment for two reasons. Our first objection to this amendment relates to the flexibility necessary for diversification. The reporting requirement, which is based on the risks as we find them today, is restrictive and premature for a market and technology that is evolving and rapidly changing. Policy work is at an early stage, and the criteria for how we measure its success is evolving in line with our policy. It would not be suitable to set out specific reporting criteria in legislation.
The diversification strategy and any reporting on its progress must be flexible so that we can focus on achieving the greatest impact. As we hope diversification to be a short-term problem, enshrining it in legislation—a long-term solution—would be counterintuitive and unnecessary. We are currently focused on diversifying radio access networks, for instance, but that may change in the future.
The Government take diversification seriously. I reassure noble Lords that mechanisms are already in place, through Parliamentary Questions and Select Committees, to thoroughly scrutinise the strategy and its progress now and in the future. This is the appropriate method of scrutiny for an evolving, time-limited strategy.
Secondly, this is principally a national security Bill intended to strengthen the security and resilience of all our telecoms networks. The Government’s 5G telecoms diversification strategy has been developed to support that objective but it is not the sole objective of the strategy. In addition, the strategy is focused on a specific subset of the telecoms supply market, not the security of public networks as a whole.
From debates in your Lordships’ House so far, it is clear that this amendment intends to hold the Government to account on the impact of the diversification strategy on the security of public networks. We will be happy to provide updates on the strategy’s progress through existing channels, and are encouraged by the developments that we have seen since the strategy’s launch. The amendment would extend the Bill beyond its intended national security focus and creates an inflexible reporting requirement on a strategy that, as I say, will evolve as it fulfils this important work. That is why I ask your Lordships’ House not to insist on Amendment 4.
I shall also speak to Motion B, which asks that this House do not insist on its Amendment 5, to which the Commons have disagreed for their Reason 5A. As noble Lords will recall, Amendment 5 was tabled by the noble Lords, Lord Alton of Liverpool, Lord Coaker  and Lord Fox, and my noble friend Lord Blencathra. The amendment would require the Secretary of State to review decisions taken by Five Eyes partners to ban telecommunications vendors on security grounds. In particular, it would require the Secretary of State to review the UK’s security arrangements with that vendor and consider whether to issue a designated vendor direction or take similar action in the UK.
As I said on Report, I welcome the intention of the amendment. It demonstrates that noble Lords across the House take the security of this country and its people incredibly seriously. However, while we support the spirit of the amendment, we cannot accept it for four reasons.
First, this amendment is unnecessary as the Bill already allows the Secretary of State to consider the policies of Five Eyes countries. Clause 16 includes a non-exhaustive list of factors that the Secretary of State may take into consideration when issuing designation notices regarding high-risk vendors. That list illustrates the kinds of factors we will be considering proactively and on an ongoing basis as part of our national security work. A decision by a Five Eyes partner or indeed any other international partner to ban a vendor on security grounds could be considered as part of that process. The amendment asks the Government to do something that has been part of the Bill from the outset. We believe that our existing approach is the right way to continually consider the decisions of all our international allies and partners.
Secondly, the amendment is unnecessary because we are already committed to a close and enduring partnership with the Five Eyes countries. We engage with our partners regularly and, where relevant, consider their actions when developing our own policies. The Five Eyes intelligence and security agencies maintain close co-operation, which includes frequent dialogue between the National Cyber Security Centre and its international partners. This dialogue includes the sharing of technical expertise on the security of telecoms networks and managing the risks posed by high-risk vendors. Engaging with our partners in this way is at the very core of our national security work.
In another place, members of the Intelligence and Security Committee agreed that the amendment was not necessary as the existing intelligence relationship with the Five Eyes, and other international parties, is strong. The chairman of the Intelligence and Security Committee, Dr Julian Lewis, said:
“We looked at Lords amendment 5 and we understood the temptation to flag up the importance of the Five Eyes relationship. We agreed ... whenever a serious objection is raised on security grounds by one of the Five Eyes partners, we take that with the utmost seriousness.”—[Official Report, Commons, 8/11/21; col. 119.]
The chairman of the DCMS Select Committee, Julian Knight MP, agreed and said that
“any Government worth their salt would take very seriously the approach of our closest security partners.”—[Official Report, Commons, 8/11/21; col. 117.]
Our third reason is that naming individual countries in legislation would be restrictive to the development of wider international relations and set an unhelpful precedent on national security legislation. The Five Eyes alliance was not created through legislation and it has  not required legislation for us to develop and strengthen that relationship in the past. Moreover, we need to consider the policies of a wide range of countries, including those of our European neighbours such as France and Germany, and those of other nations such as Japan, South Korea and India, to name but a few. It is highly unusual to refer to specific countries in legislation in this way, and the amendment would set an unhelpful precedent for future legislation.
Finally, the amendment is impractical because of the many different ways other countries operate their national security decision-making. It may not be immediately clear when a country has taken a decision to ban a vendor, particularly if it relied on sensitive intelligence. It also may not be clear why a country has taken this decision, and it may not always be based on national security grounds. So, while I welcome the intentions behind the amendment, we cannot accept it and that is why I ask that the House does not insist on Amendment 5 either. I beg to move.

Lord Clement-Jones: My Lords, I hope my noble friend Lord Fox has given his apologies to the Minister for being unable to be here due to a Select Committee engagement. However, that does not mean that on these Benches we are any less disappointed—or indignant, as I think my noble friend Lord Fox would put it—about the Government having turned down both amendments, which my noble friend signed. The Minister is developing a fine turn of phrase in turning down amendments that appear perfectly sensible. On Report he talked about sharing the ambition and warmly welcoming the intent and then said that they did not quite fit the Bill and the Government could not accept these amendments. It is rather baffling since both are built very firmly on the Government’s expressed intentions —indeed, ambitions—set out in the integrated review. That was very clear in our debates on Report. It seems that the Government’s motives are much more firmly based on resistance to scrutiny and the idea that, somehow, they would be constrained in their work on diversification by having to report, in the case of Lords Amendment 4. However, the words he used were:
“legislating for a reporting requirement would be limiting and inflexible.”—[Official Report, 19/10/21; col. 86.]
Having reread the debate and heard again what the Minister had to say, I still cannot understand the Government’s rationale for this.
The rejection of Lords Amendment 5 is equally baffling because the Minister talks again about the limitation of the amendment to a particular set of countries. Surely, one of the reasons we are where we are, and the Government had to backtrack on their treatment of high-risk vendors, is precisely that they were not in step with their other Five Eyes allies. Therefore, the Government are not even learning from experience. We are where we are, however, and clearly we are not going to take this further, but I believe that the Government will regret not accepting both amendments.

Baroness Merron: My Lords, the matters under consideration today are about not party politics but the first duty of any Government: to ensure the security of our citizens and the United Kingdom. Following majorities in this House and considered debate in this and the other place, it is regrettable that the Government  have rejected sensible amendments to this important Bill, which I still believe would have improved and enhanced our collective security. The arguments against these amendments have been somewhat wanting, generally conveying the message, throughout the passage of the Bill, that it is all being take care of—a view that this House, on all sides, has not shared.
Our extensive use of new technology throughout the pandemic shone a very bright light on the degree to which we rely on telecoms networks and our experience has reinforced how intertwined these networks are with issues of national security. So, to ensure our security, diversification is crucial and thus far an effective plan to diversify the supply chain has been absent. As I recall, we do, however, have broad agreement that we cannot have a robust and secure network with only two service providers, which is what will remain when Huawei goes. This is why we need to ensure diversity of suppliers at different points of the chain, with sufficient support for the UK’s own start-up businesses. I, too, will quote, from the debate in the other place, the words of Dr Julian Lewis MP, the chair of the Intelligence and Security Committee, who is obviously much quoted today. He said, of Lords Amendment 4:
“For the life of us, we cannot understand why the Government are opposing it. We believe it would strengthen parliamentary scrutiny and provide a valuable annual stocktake on the progress being made on the diversification strategy and how it is helping to improve national security.”—[Official Report, Commons, 8/11/21; col. 119.]
The Government have said that they are serious about protecting our telecoms security and they respect the vital role that diversification plays in achieving that. I would therefore have thought that the Government would welcome the added layer of diversification scrutiny that Lords Amendment 4 provided. It is disheartening, therefore, that the amendment is rejected by Motion A.
On Motion B, our telecoms security also depends on strengthening our international intelligence bonds and the Five Eyes provides the perfect opportunity to do so. It is therefore similarly disappointing that the Government, having promised to work with this alliance in the integrated review, have resisted introducing a requirement that the Government should automatically review vendors—and by that we meant only “review” vendors when others in the Five Eyes ban companies from their networks. This was provided for by Lords Amendment 5. Such a response, as outlined in Motion B, flies in the face of common sense and it is very disappointing to see this rejection.
I accept that on this occasion we have reached the end of the parliamentary road with the Bill. However, as time goes on and the provisions of the Bill take effect, I hope that the Minister will reflect on the debates in the House and the other place concerning the intent and practical considerations that would contribute to security improvements, as provided by Lords Amendments 4 and 5. I hope the Minister will not feel constrained when he further considers making improvements in this area.

Lord Parkinson of Whitley Bay: My Lords, I certainly hear the disappointment and perhaps, as the noble Lord, Lord Clement-Jones, said, even the  indignation of his noble friend Lord Fox, in his absence. I am sure that if the noble Lord, Lord Alton of Liverpool, who is not able to be with us today, were here he would have had something to say as well. However, I hope to be able to reassure all noble Lords that the Government certainly have listened to and taken on board the points which have been made. Where we respectfully disagree, I would point to the fact that another place has disagreed as well, but, as I said in my opening remarks, we are very conscious of the spirit of scrutiny in which these amendments have been put forward. Noble Lords have wanted to ensure that the Bill does what the Government intend: to set up a framework to protect the national security of our country. We simply disagree about the practicalities of some of the amendments which remain at this late stage.
It may be helpful to say a little more about the opportunities for parliamentary oversight of the diversification strategy which noble Lords and Members of another place will have been able to take advantage of. Since its publication, Members of another place and noble Lords have had the opportunity to scrutinise and provide feedback on the strategy. The Science and Technology Select Committee in another place held an inquiry earlier this year on 5G Market Diversification and Wider Lessons for Critical and Emerging Technologies. The Government responded to the committee’s report in April, agreeing with its assessment of the scale of the diversification challenge and that there is a need to work swiftly to make early progress and build momentum as we work towards our long-term ambitions. We have not yet committed to a specific way of reporting progress, as policy work is at an early stage and the criteria for how we measure its success is evolving in line with our policy, as I said in my opening remarks.
However, we have made and announced a lot of progress on our diversification strategy already: for example, on our programme of targeted R&D support, including the future RAN open competition, the winners of which will be announced soon. We will continue to update on progress and are planning to launch further policy commitments at the same time as announcing the winners of that competition later this year. I know that noble Lords, if they agree with us and do not insist on their amendments today, will certainly continue to watch this issue vigilantly and find every opportunity to pursue these important issues in your Lordships’ House and through Parliamentary Questions and Select Committees, and it is right that they do.
I end by thanking again the Bill team and all officials who have been involved in the development of this important Bill. I listed them in full last time, so I will not try the patience of the Hansard editors by repeating their names but I will add one final name: Daniel Wilson, who has been of great support to me and my noble friend Lady Barran in working on this issue in private office.
I commend the Bill to your Lordships’ House. It will create one of the toughest telecoms security regimes in the world and ensure the security and resilience of the UK’s telecommunications networks and infrastructure.
Motion A agreed.

Motion B

Lord Parkinson of Whitley Bay: Moved by Lord Parkinson of Whitley Bay
That this House do not insist on its Amendment 5, to which the Commons have disagreed for their Reason 5A.
5A: Because the Commons consider it inappropriate to specify the steps to be taken by the Secretary of State where decisions in relation to telecommunications vendors are taken on national security grounds by other countries.

Lord Parkinson of Whitley Bay: My Lords, I have already spoken to Motion B, and I beg to move it formally.
Motion B agreed.

Police, Crime, Sentencing and Courts Bill
 - Committee (8th Day)

Relevant documents: 1st, 4th and 6th Reports from the Joint Committee on Human Rights, 6th Report from the Delegated Powers Committee, 7th Report from the Constitution Committee

Amendment 208A

Lord Blunkett: Moved by Lord Blunkett
208A: After Clause 115, insert the following new Clause—“Review of the arrangements for the resettlement and supervision of prisoners serving sentences of IPP: effectiveness(1) Within six months of the passing of this Act, the Secretary of State must lay a report before both Houses of Parliament on the effectiveness of the arrangements for the resettlement and supervision of prisoners serving sentences of imprisonment for public protection (“IPP”) released on licence.(2) The report must include, but not be limited to—(a) an assessment of the factors underlying the rates of breach and recall of prisoners serving sentences of IPP released on licence, and what could be done to address them, including—(i) the effectiveness of the arrangements for the preparation of prisoners serving sentences of IPP to be released on licence, including the adequacy of information and guidance for prisoners on licence provisions, breach of licence and the risk of recall;(ii) the adequacy of existing probation service guidance on breach and recall;(iii) whether more use could be made of alternatives to immediate recall to custody including electronic tagging;(iv) the extent to which a failure to properly support and supervise prisoners serving sentences of IPP on release is contributing to the high proportion of this group breaching the terms of their licence and being recalled to prison.”Member’s explanatory statementThis, along with another amendment after Clause 115 in the name of Lord Hunt of Kings Heath, is a probing amendment intended to require a review of the arrangements for the resettlement and supervision of prisoners serving sentences of IPP.

Lord Blunkett: My Lords, in moving Amendment 208A with its proposed new clause, I give my wholehearted support to the other amendments which have been laid, to which I have appended my name, and a strong encouragement that we build on the alliance that has been put together. I thank noble Lords and, where they have them, their staff—and mine—for the terrific co-operation that has emerged over recent weeks. I give apologies from the noble and learned Lord, Lord Clarke of Nottingham, who wished to be here but has a medical appointment. Members of this House will recall that the noble and learned Lord was Secretary of State for Justice when the IPP proposal was set aside and the 2012 abolition of that sentence agreed by the two Houses of Parliament.
At the time, I took the late and much lamented Paul Goggins to see the noble and learned Lord, Lord Clarke, to discuss what might be possible as a rapid wind-up of the consequences of the original Act, part of which is my responsibility and which I want to speak about in a moment. The noble and learned Lord has reflected with me on a number of occasions, as he did on that occasion with Paul Goggins, who had been a Prisons Minister and the Minister of State in Northern Ireland responsible for the prison service there, on the massive political challenges in getting agreement. I hope that this afternoon we can take a step in finding a way forward almost 10 years later, when so many prisoners still find themselves subject to the original imprisonment for public protection.
I thank the Prison Reform Trust, the Howard League and many others for their advice. I will take a moment to thank Frances Crook for her many years of dedicated commitment and service in the cause of reform. Frances, who retired at the end of October, will long be remembered as a beacon for her commitment and dedication. But in an area which is so unfashionable and difficult to gain the public’s attention in, you also really need the utmost stalwart tenacity to carry it through. I particularly want to offer my appreciation and thanks to campaigners, individuals and families for their understanding, determination and tenacity, particularly the campaigning group UNGRIPP: Shirley Debono and Donna Mooney have been with me for almost as long as I can remember in trying to put right something which, as I mentioned a moment ago, I had a hand in getting wrong. The remarkable coalition that exists inside your Lordships’ House and outside, should surely give the Government the cover and courage to take steps now that will put wrongs right and ensure that we have a journey—a road to travel—for the future.
I want to refer briefly, because I am aware of the enormous pressure on time for the Bill, to how we got here in the first place. Back in 2003, with the Criminal Justice Act’s provisions on sentencing, we thought—this was held across both Houses at the time—that the steps we were taking would be beneficial rather than ending up with the disaster, let me call it that, which has occurred over those subsequent 18 years. The intention was, first, to put right a wrong which existed with those who were on indeterminate sentences—they were not called that, but that is what they were—who had no route out because the therapies and courses, or the journey as I like to call it, were not present.
For many years I have been trying to help a prisoner called David McCauliffe, who was sentenced for the second time in his life, that time for seven years, and is still in prison. He was sentenced at the end of the 1980s for a crime that undoubtedly created unsafe conditions for the public at the time but fell short of rape or murder. He is still in prison today after 33 years. The longer he has been in, the more difficult it has been for him to show he is safe to be released. Many IPP prisoners find themselves in that position today.
The intention was that there would be a route for those caught in that trap, like David McCauliffe, to find a way forward. At the same time, there have been a number of incidents where people who were known to be unsafe—they had declared their intention to commit further heinous crimes such as kidnap, rape and murder—were allowed out without any clarity as to how their behaviour was going to be monitored, and they were not on licence. That is why, going back to the Halliday report of 2001, the good intention was that there would be mechanisms put in place to supervise and support—I emphasise “and support”—prisoners on release, to provide safety for the public and rehabilitation for those who were safe to be in the community. Both those elements went badly wrong with the IPP sentence.
First, we had not fully agreed with the Treasury for the resources to be put in place from 2005, after I had left the Home Office, which at the time had responsibility for what is now the Ministry of Justice and sentencing. Therefore, the resources were not available, and are still not, to do the job properly for those who needed rehabilitation and preparation for release. Secondly, we had not understood that, because those therapies and courses were not available, it was quite likely that cautious members of the judiciary would take a “safety first” view in applying an indeterminate sentence rather than a determinate sentence, which in some cases would have been a matter of two or three years, in the initial phases, rather than the 10 years plus originally discussed and envisaged. This was not applied as a mandated sentence because of the understandable requirement of the judiciary to have flexibility and be able to determine a sentence without it being laid down by Parliament.
So, here we are all these years on, with two strands having gone very badly, and the lessons that needed to be learned still in front of us today. I do not think any of us could have envisaged the impact—I certainly did not—of the recall provisions which were later strengthened and therefore made more draconian. This has led to a large number of prisoners finding themselves back in prison, sometimes for committing a crime that could be very minor and sometimes for a breach of their licence conditions. Out of the 3,000 people who are still in prison on IPP, 1,300 of them are there because of recalls. That is 100% up from 2016, five years ago. If we are not careful, that trajectory will lead to more prisoners being in prison on IPP on recall than are actually in prison for the original IPP sentence applied, which is a farcical situation and a tragedy for them.
More than 60 clinical and forensic psychologists, psychiatrists and criminologists have written to me, and I hope they will write to the Minister, setting out the trajectory from those early days, where the lack of  therapies and courses led to caution and to the inability of prisoners to demonstrate that they were safe to be released; in other words, the failure to put the other mechanisms in place led to prisoners not being able to demonstrate their safety for the community. By not being able to do so, they spent so much more time in prison that the impact of that lengthy sentence and the hopelessness of not having an end date made their emotional, mental and psychological situation worse. The original sentence was supported by those who believed that the right kind of psychological conditions and help were essential to make them safe and, having undermined those conditions, we now have a situation where they are seen as unsafe; in other words, we have gone full circle, undermining the original intentions and, by doing so, having people in prison far beyond what was originally envisaged.
The modest Amendments 208A, 208C and 208E are part of a journey to the much more robust and necessary Amendment 208F, which would be the logical conclusion of trying to get this right and doing so very quickly. Here we are, all these years on, nearly 10 years since the abolition of the Act, and we still have 1,700 prisoners who have not yet been released and 1,300 who have been released but who have, within an average of 20 months, been recalled and are still in prison. That, on a traditional fixed-term sentence, would be a sentence of three and a half or four years, often for a minor breach. This is not just unequal and unjust, it is immoral. It is immoral because those individuals, who have already had their confidence and likelihood of being able to demonstrate their safety undermined, are further undermined by the conditions they found themselves in when they came out of prison.
Amendments 208A, 208C and 208E look at the conditions inside prison for preparing people for release—which would apply more broadly, so getting this right might improve the Prison Service delivery for prisoners as a whole—and the conditions people find themselves in when they come out. It is not surprising that, since 2012, the incidence of breach and return has grown exponentially, because Christopher Grayling MP was responsible for the virtual demolition of the National Probation Service. Nobody can blame the probation service, whose resources were undermined, and the connectivity that the Centre for Social Justice quite rightly laid out all those years ago, for ensuring that people were not returned to prison, because we had not put them in the right places with the right support in the communities they were returned to.
None of this undermines my culpability in not seeing this 18 years ago, in not understanding that it would be really difficult to get the resources out of the Treasury and that it would be difficult to persuade the public—having said this was a sentence which required the presentation to the Parole Board for safety—that we were absolutely sure all these prisoners coming through and who had minor breaches were not going to commit crimes. None of us can be sure of those aspects, but it is very difficult to say that to the public.
Having a coalition of the willing and cross-party and no-party support for real change, the Government now have an opportunity to demonstrate both their  humanity and rationality in getting this right for the future. My party, and Members of the Conservative Party, the Liberal Democrats, Cross-Benchers and the Spiritual Benches are all committed to backing the Government in doing the right thing.
I have never resiled from wanting people who have committed heinous crimes to be put away for a very long time, or from having tough sentences where they are needed. But this situation cannot go on. We have to do something for the sake of the individuals and their families, and for the safety of the community, because the longer they are in prison on a suspended animation sentence or on licence, the more likely they are to find themselves unable to rehabilitate and live a normal life. When that happens, they are more likely to commit a crime. I got it wrong. The Government now have the chance to get it right. I beg to move.

Lord Falconer of Thoroton: I commend the speech of my noble friend Lord Blunkett. I agree with every single word of it. I am as culpable as he is in relation to this. I was a junior Minister in the Home Office at the time, and the Lord Chancellor did not foresee the consequences of what the noble and learned Lord, Lord Brown, who I am glad to see in his place, described as
“the greatest single stain on our criminal justice system.”
Our purpose on these Benches is to participate in a coalition of people with a view to persuading the Government to make sensible changes to the regime to get rid of this injustice that the noble and learned Lord, Lord Brown, and my noble friend Lord Blunkett, have referred to. The amendments before the Committee today provide a number of sensible options, but we put them forward, or support them as part of that coalition, with a view to reaching agreement with the Government to do something about them.
I may try the patience of the Committee too much, but I will speak to the amendment to which my name is put, and then I will speak again indicating the Labour Party’s position on the whole range of amendments. The amendments I speak to at the moment, therefore, are Amendments 208A and 208C, which deal with the position in relation to those IPP prisoners who have been released, and what the Government should be doing about them. I add my thanks to those of my noble friend Lord Blunkett to the Prison Reform Trust, which has provided an incredibly valuable briefing to the whole House. I also thank the Howard League for Penal Reform, which has done the same; Frances Crook, who has, over a very long period, provided real guidance to policymakers on these issues; and UNGRIPP, a group of friends and prisoners who have suffered as a result of this regime.
I turn now to the probing Amendments 208A and 208C, which are in my name and that of my noble friend Lord Blunkett. He gave the figures. The basic proposition is that to reduce reoffending, energy and resources need to be devoted to ensuring that IPP prisoners who secure their release are able to live successful lives thereafter, avoiding recall to prison. That is what is best for society and for them. Without this, the current incidence of recall will soon, as my noble friend said, lead to a situation in which the number of people  serving the IPP sentence may start to grow rather than decrease. From 30 September 2015 to 30 June 2021, the number of never-released IPP prisoners fell by 61%, from 4,431 to 1,722.
However, at the latest date for which I have figures, which is June 2021, there were 1,332 people back in prison having previously been released—more than double the number of five years ago. Recalled IPP prisoners who were re-released during 2020 have spent an average of 20 further months in prison before re-release. The hopelessness and despair that engenders is incredibly effectively described in the Prison Reform Trust’s report No Life, No Freedom, No Future. Its findings are based on data provided from Her Majesty’s Prison and Probation Service on recalls and re-releases and on interviews with 31 recalled IPP prisoners. A briefing from the Prison Reform Trust said:
“The report found that IPP prisoners’ life chances and mental health were both fundamentally damaged by the uniquely unjust sentence they are serving. Arrangements for their support in the community after release did not match the depth of the challenge they faced in rebuilding their lives outside prison. Risk management plans drawn up before release all too often turned out to be unrealistic or inadequately supported after release, leading to recall sometimes within a few weeks of leaving prison, and for some people on multiple occasions. The process of recall also generated strong perceptions of unfairness.
At its worst, the report found that the system … recalled people to indefinite custody”
for what appeared comparatively trivial matters,
“defined needs (e.g. mental health) as risk factors … ignored the impact of the unfairness of the sentence on wellbeing and behaviour … could not provide the necessary support; and … provided no purpose to time back in custody or a plan for re-release.”
Not all IPP recalled prisoners endured that, but it was common enough to say that the system needed looking at overall. As I indicated, many IPP interviewees suggested that the recall decisions were taken too lightly. At most, 23 of the 31 participants had not been convicted of a subsequent offence when they were recalled.
What to do about it? To prevent the current situation continuing—and I am dealing only with people being recalled—there are basically eight things to do. First, the process for licence review should be automated, and the qualifying period reduced from 10 years to five. That is in line with Amendment 208D. Secondly, the test for recall should be changed. It should be that there is imminent risk of the person committing an offence causing serious harm, and that that risk cannot be managed in the community. For other things, such as not staying at the address named in the conditions, other measures should be thought about—for example, adjusted reporting requirements, use of electronic tags and curfews. Thirdly, where a person has been charged with a further offence, the normal criminal justice processes should apply, with a court considering whether remand in custody is appropriate for the new alleged offence. Fourthly, if a person is convicted of a further offence, the court should decide what happens to that person, not an official. Fifthly, if a person is convicted of a further offence and the court decides to recall them under the provisions of their IPP sentence, the Parole Board should be required to consider release alongside any considerations of discretionary release that attach to the new sentence—for example, an extended determinate sentence. Sixthly, IPP prisoners  who have been recalled, not having received a new custodial sentence and not being re-released on the papers by the Parole Board, should have the right to an oral hearing if they so wish. Seventhly, if the Parole Board panel upholds the decision to recall, it must set a fixed date for a further review. Eighthly, all recalled prisoners should be entitled to annual reviews of their continued detention at an oral Parole Board hearing with free legal representation.
We, on this side of the Committee, are very much aware that proper measures need to be in place to provide public protection, but that has to be balanced against a system where once people on IPP are released, they are not recalled except when something significant has happened and there is proper and serious support. I commend these amendments to the Committee.

Lord Brown of Eaton-under-Heywood: My Lords, first, I commend, as others have, all those who have, in recent times, been building the road on which we are set today—none more so than the noble Lord, Lord Blunkett. For many years, I have urged, with no success thus far but with great hopes today, the reform of what remains of the IPP sentencing regime. It is in no way hyperbole to describe it, as I already have, as the greatest single stain on the justice system. Indeed, it is a deeper, growing stain because of the situation with the recalls.
The system was prospectively abolished by LASPO in 2012, but, nevertheless, some 3,000 of these prisoners remain in prison, as noble Lords have heard. By definition, they were sentenced before 2012. Some 1,700 have never been released, and now more than 1,300—a steadily increasing number—have been recalled after release, mostly not for reoffending but rather for some often comparatively minor breach of licence conditions, such as not giving their current address. This is very often because they do not have a satisfactory one.
In recent years, I have been to see many a Lord Chancellor about this growing injustice. All have then been moved on before they have had an opportunity, or certainly the political will, to deal with this. Several ex-Lord Chancellors—the noble and learned Lord, Lord Clarke of Nottingham, and Michael Gove prominent among them—have expressly recognised the deep injustices that these particular prisoners suffer. Many commentators in public life have made the same points, culminating in a stinging column, which I hope some noble Lords caught, by Matthew Parris on 31 July this year, urging the immediate reassessment of all of these people who have been so unjustly treated, remaining incarcerated under this long since discredited system.
I must remind myself that this not a Second Reading speech—I made one of those. Therefore, I shall not, for the most part, repeat the appalling statistics, such as the suicide and self-harm figures—twice as many IPP prisoners as even life prisoners self-harm—that mark this regime; nor shall I describe again the depths of hopelessness, despair and uncertainty that not only these prisoners but of course their families continue to suffer.
However, I emphasise that even my amendment, which the noble Lord, Lord Blunkett, described, rightly perhaps, as the most fundamental of this group, falls  well short of the radical proposals that Matthew Parris put forward. I single out just two specific categories of unreleased IPP prisoner—those suffering the most conspicuously from this flagrant injustice. The amendment invites not their immediate release but merely some modest measure of relaxation in their extreme cases. It seeks that, once one of these unfortunate prisoners, by definition sentenced over nine years ago, as I said, has either served at least 10 years over the sentence that was recognised to represent his just punishment, or been locked up for longer than he would have been had he been sentenced to the “maximum determinate sentence” prescribed by law for his offence, then, instead of it still being up to him to prove that he can safely be released with no risk to the public—proving that negative is always most difficult—the burden would shift to the detaining authority, which would have to prove that he would present a serious risk to the public if released, to justify his continued incarceration. I hope that this might be some way of at least countering what one suspects and understands is a risk-averse approach on the part of the Parole Board. This is the only amendment in the group that is directed to giving some early relief to these two categories of the never released.
However, I also strongly support the other amendments: they would, variously, make for better preparation for the release of this cohort, under the existing scheme, and put some real controls on the present exorbitant provisions for recall. The majority concern licences and would go some way toward mitigating the harsher of these provisions, which, in fact, if one thinks about this, reflect or mirror the licence regime that applies altogether more appropriately to actual life-sentence prisoners—those who were justifiably sentenced and actually made subject to that specific life-sentence penalty. Of course, life-sentence prisoners are punished by that sentence for what they have already actually done, and they rightly remain subject to recall for life. But, by contrast, IPPs are being punished for what they might do in future, if they are released. This is preventive detention and, essentially, internment, a concept that we have previously always thought alien and inimical to our system of law.
These amendments would not merely make recall less draconian and lifelong than it is in most cases now; they would cure a particular anomaly, by which actual life-sentence prisoners can be released by order of the Secretary of State, whereas IPPs always have to have the agreement of the Parole Board. In short, it is necessary to legislate to change the law to allow the Secretary of State, on the return of recalled prisoners, to release them when he thinks that they should be released.
I turn to my final point. To anyone, whether the Daily Mail, unthinking politicians or others in the “Lock them up and throw away the key” school of thought, I ask this question. Suppose that, today, an IPP prisoner with a tariff sentence of less than two years—his offending having been adjudged to deserve less than a two-year period of detention as punishment—is still in prison more than 10 years after that two-year sentence has expired. This June, there were 207 in that category—there are hugely more who have served 10 years beyond their slightly longer tariffs. Suppose that that prisoner cannot persuade the Parole Board  that he would pose no risk of reoffending if released. I ask this doubting group: must he remain incarcerated? Is that fair? What if that position remains, five, 10 or 20 years down the line? Are we really going to continue to sanction lifelong internment in this country? Not in my name. I urge these amendments on the House.

Baroness Burt of Solihull: My Lords, I support all the amendments in this group, but, for the sake of brevity, I will specifically address Amendments 208B, 208G and 208H, which stand in my name. Like the noble Lord, Lord Blunkett, I add my thanks to all the organisations and charities that have helped us so assiduously and briefed us.
In January this year, a young woman on an indeterminate sentence wrote to me. I will call her Ella; I will not use her real name to preserve anonymity. I said that Ella was a young woman: she was 25 when she first went to prison in 2007. Her tariff expired in 2010, but 11 years past that date, she was still in prison. She was at the time she wrote waiting for a parole assessment in April, by which time she would be 39.
I wrote back to her and said that I was not willing to take up individual cases, but, having read her story, I would address the issue if suitable legislation came along. That is why I am here today. I am here for Ella and the more than 3,000 people still languishing in prison under the provisions of this law, despite the IPP sentence having been abolished nearly 10 years ago.
I wrote to her a few weeks ago to tell her that I was going to raise the matter of IPP sentences under the Bill, but I received no response, which was odd. Having contacted the authorities at HMP Bronzefield, I was told that Ella had been released, but recalled because she had
“failed to attend an Approved Premises at a specific date and time as directed.”
She was therefore back in prison awaiting another Parole Board hearing—a yo-yo process which happens to the majority of IPP prisoners.
To be released they have to jump through hoops, in the form of various training courses—when those courses become available—but if they do not show a sufficiently positive response, they are not deemed fit to be released anyway. It quite reminds me of something by Kafka, or perhaps Catch-22. When the Parole Board in its wisdom decides an IPP prisoner is fit for release, if they infringe their conditions, such as by failing to attend an approved premises at a specific time and date, they can be hauled back to prison to start the whole thing all over again.
Indeed, the situation for IPP prisoners is often much bleaker than for lifers. We heard from the noble and learned Lord, Lord Brown, about some of the statistics. The biggest group of IPP prisoners still incarcerated today received tariffs of only two to four years. Some 96% of IPP prisoners are still in prison, after their tariff has expired. Their rate of self-harm, as we have already heard, is double that of lifers. It is a form of modern-day torture, fuelled by a constant sense of anxiety, hopelessness and strong feelings of injustice and alienation from the state. You would feel like that too, wouldn’t you?
Even when they have been released on licence, there is a constant sword of Damocles hanging over their and their families’ heads—that some contravention might trigger a recall. Because of this constant threat they are fearful of asking for help with problems, and families often bear the brunt of shielding and protecting the ex-prisoner for fear of recall.
That, in a nutshell, is why we need a better system. This one certainly does not work. Through my Amendment 208B, I am trying to suggest ways in which we can start removing the Catch-22 element from inside prison. I am proposing a review to examine the quality, effectiveness and availability of offender behaviour programmes, progression programmes and other opportunities to demonstrate reducing risk to the public; the availability of welfare and mental health support to help redress the damage that the system and the constant powerlessness and uncertainty of being an IPP prisoner creates; and, if and when prisoners have been recalled, the support available to help them pick up the pieces while they face another interminable wait for a Parole Board hearing.
That brings me to the Parole Board. There are many who believe that parole boards are becoming more and more risk-averse, because they conflate the behaviour of some prisoners with the increasing deterioration they experience arising from the treatment they received in prison, not their likelihood of reoffending. Therefore, Amendment 208B describes several measures aimed at improving the parole system and providing better support in the community to facilitate a safer release.
Amendment 208G would automatically bring the licence period to an end two years after release at the direction of the Parole Board, provided that the person has not been recalled in that period. The Secretary of State himself has already mooted the idea of reducing this period, and Amendment 208D in the name of the noble Lord, Lord Moylan, would decrease the automatic period of release from 10 years to five. Both amendments are a win-win, and if two years looks a little short, Amendment 208G also has safeguards to protect the public by allowing the Secretary of State to ask the Parole Board to extend the licence period by a further 12 months if they have concerns about the risk to the public. This would call time—literally—on the yo-yo way a prisoner can be recalled up to 10 years after release, potentially for the rest of their lives, even if they have committed no further offences.
Finally, Amendment 208H seeks to create an additional power of release on top of the mandatory requirement for a recalled prisoner to potentially avoid the necessity of having to languish in prison waiting for the next Parole Board hearing. This is a similar power to that already held for determinate sentenced prisoners, including those serving certain public protection sentences. I hope the Minister will be favourably disposed to this “levelling up” measure. After all, these prisoners have all been deemed fit for release at one stage.
All these amendments would contribute to radically reducing the final rump of victims and their families—including Ella—who are caught up in this cruel Catch-22 situation. Let us stop the damage we are inflicting on these prisoners, their families and ourselves as a country.

Lord Hunt of Kings Heath: My Lords, I shall speak briefly to my Amendment 208C. My noble and learned friend Lord Falconer eloquently introduced it. He took all my best lines—in fact, all my lines—so I will be very brief. This is a very modest amendment. It simply requires a review of the resources and support available for the resettlement and supervision of prisoners serving IPP sentences who are released on licence.
I very much hope the Government will listen to this afternoon’s debate. There is such a powerful force behind these amendments all around the House; it should provide enough cover to the Government to do the right thing. One comes back, time after time, to the comments of the noble and learned Lord, Lord Brown, when he described this situation as the greatest single stain on our criminal justice system. Surely the Government must respond sympathetically to what noble Lords are saying this afternoon.
All I want to do is emphasise what the noble Baroness, Lady Burt of Solihull, said about the Catch-22 situation that applies particularly to those who have been put out on release. First, if those people are honest about the fears and problems they have faced in prison, they can often risk being considered unsafe to be released in the first place. Secondly, if they ask for help with a mental health problem in the community, they could be assessed as being high risk and be recalled to prison. It is an extraordinary situation. If they enter into a new intimate relationship, they do so in the knowledge that an upset partner could make false accusations which would result in recall. How are people meant to live in that situation? As the authors of the Prison Reform Trust report say—it is an extraordinary and moving piece of work—it is hard to imagine how any of us could hold on to our sanity and self-belief in this situation. I plead with the Government to take note and be sympathetic to the plight of these people.

Lord Moylan: My Lords, I shall speak to Amendment 208D in my name. I am grateful to the noble Lords who have lent it their support.
At Second Reading, I said that I considered it a shame to this country that there were still prisoners serving indeterminate sentences for the public protection. I do not propose to elaborate on this today, although I associate myself with the remarks made by noble Lords in the debate so far.
Some amendments in this group are probing amendments, but Amendment 208D seeks to change the law in a way which is helpful to the Government. It does not concern those in prison under an IPP, only those living in the community on licence; that is, those who have already been found by the Parole Board to be safe for release without presenting a threat to public safety. As noble Lords have described, currently these persons are potentially subject to a lifelong licence. They can be recalled to prison for a breach of the licence conditions at any point while the licence is in force. The only way in which the licence can be terminated is for the individual to apply to the Parole Board for a licence review after the expiry of the qualifying period. This is currently set at 10 years. The Government have stated that, in future, they wish these reviews to be automatic, and not to require an application from the prisoner.
On 21 July, in response to a Question for Written Answer from the noble Lord, Lord Blunkett, my noble friend Lord Wolfson of Tredegar said:
“From September this year, officials will refer automatically to the Parole Board the case of every offender serving the IPP sentence who has become eligible to apply for termination of his/her IPP licence.”
There is a problem. Close examination of the current legislation makes it clear that the review can be undertaken only on the prisoner’s application. Therefore, the Government cannot make an automatic referral to the Parole Board without the prisoner’s active co-operation. This somewhat holes the policy of automaticity. Amendment 208D addresses this deficiency by amending the Crime (Sentences) Act 1997 to require the Secretary of State to make an automatic referral to the Parole Board at the end of the qualifying period. If the application is dismissed, it can be made annually thereafter. The referral does not depend on the acquiescence or collaboration of the prisoner. It allows the Government to do what they have said they want to do. I hope the amendment will command their support. It does not prejudge in any way the decision of the Parole Board on that referral. The decision as to whether or not to terminate the licence remains entirely in its hands.
Noble Lords may wonder why a prisoner entitled to a review at the end of the qualifying period should be slow to make one on his or her own initiative; in other words, why is there a need for automaticity? It certainly seems strange not to apply for a termination of the licence. As noble Lords have explained, a person on licence under an IPP and who commits an offence for which an ordinary criminal might receive a short determinate sentence can be recalled to prison for an indeterminate term.
None the less, there are reasons why IPP prisoners do not apply for a termination of their licence. First, many do not know what the qualifying period is, nor what it means. Nobody is obliged to contact them to tell them. There is evidence of confusion, even among probation officers, as to the rules. In any event, many prisoners out on licence will not be in regular contact with a probation officer, since, although the licence lasts for a minimum of 10 years under the current system, supervision can be terminated after five. Many IPP prisoners out on licence after that many years simply do not want to take the risk of re-engaging voluntarily with a criminal justice system which they believe has treated them so unfairly. Automaticity is good and necessary. The Government agree and I hope this amendment will pass.
There is one more part to the amendment which is easily missed. I referred earlier to a qualifying period after which a review of the licence can be applied for. If this amendment passes, it will take place automatically. The qualifying period is set by law at 10 years. The very last words of the amendment would have the effect of reducing it to five years. As far as I know, this is not government policy. It is, of course, open to my noble friend to accept the part of the amendment dealing with automaticity, while rejecting the reduction in the qualifying period.
I hope that noble Lords will support me in pressing this on the Government. For those IPP prisoners who receive a short minimum term, the 10-year licence  period is wholly disproportionate to the term that would have been attached to the equivalent determinate sentence, had one been imposed instead of an IPP. It can hardly be argued that it is necessary for public protection. As I said earlier, under this amendment, the decision whether or not to terminate a licence would remain with the Parole Board. Reducing the qualifying period to five years would simply reduce the length of time after which an individual out on licence would be entitled to a review. These people would be out on licence with the approval of the Parole Board and would have shown themselves to be safe in the community for five years. The number of IPP prisoners out on licence who are recalled after five years is, in any case, very small. Furthermore, the latest available data show that no IPP prisoner committed a serious further offence five years or more post release. Their supervision can be—and often is—terminated after five years.
I believe that everything argues in favour of a reduction in the qualifying period to five years. I hope that the Government will accept this part of the amendment as well. A person in this position—with a track record of living safely in the community for five years—needs the opportunity that we wish for all prisoners: to serve their sentence and return to the community to make a useful contribution to their own and to others’ lives.

Lord Bradley: My Lords, I shall contribute very briefly to this group of amendments. I fully support the views already expressed. I will not repeat them. I strongly commend the opening speech by my noble friend Lord Blunkett. He set out clearly the direction of travel which this House wishes to take.
I will speak briefly on Amendment 208B, particularly proposed new subsection (2)(b), which the noble Baroness, Lady Burt, has already eloquently described. It states the need for
“an assessment of the welfare and mental health support available to prisoners”—
still serving an IPP sentence—
“including measures to reduce the risk of self-harm and self-inflicted death”.
I declare my interests in the register as trustee and vice-chair of the Prison Reform Trust. Again, I thank it for the excellent work it has done over a number of years in this area, culminating in the report by Edgar, Harris and Webster, entitled No Life, No Freedom, No Future. I think this sums up the mood of the House this evening.
People given IPP sentences are disproportionately more likely to have a pre-existing mental health problem and, obviously, that can be exacerbated by the fact that it is an indeterminate sentence. As the Ministry of Justice figures alluded to by the noble and learned Lord, Lord Brown, show, in 2020 IPP prisoners had one of the highest rates of self-harm, with 1,244 incidents per 1,000 prisoners, which is twice as high as the rate for determinate sentence prisoners of 620 per 1,000. It should be noted that in the Safety in Custody annual releases, self-harm and assault figures refer only to unreleased IPPs; incidents for recalled IPPs are hidden in the broader “recalled prisoners” category.
As we have heard, the fact that the imprisonment is indeterminate can leave people feeling hopeless and helpless yet afraid of seeking support which might prolong their imprisonment. Further, it can make it difficult for families to avoid relationship breakdown and estrangement from their relative serving the indeterminate sentence, as clearly evidenced in Annison and Straub’s 2019 report. Crucially, mental ill health can limit progress towards release, and serving an abolished sentence can make people feel—to quote Sarah Smart’s 2018 report for the Griffins Society—“disenfranchised, frustrated and distressed.”
We have heard clearly tonight why this appalling situation cannot continue. We must set the direction of travel tonight, and I hope that the Government will recognise that action needs to be taken. However, in the short term, people with mental health problems need proper assessment in prison so that their issues can be addressed effectively on their road to release from prison.

Lord Garnier: My Lords, because of the quality and content of the speeches already made this afternoon, I hope I can be quite brief. I begin by declaring an interest as a trustee of the Prison Reform Trust and by commending the report that the noble Lord, Lord Bradley, just mentioned: No Life, No Freedom, No Future, the title of which brilliantly encapsulates the Kafkaesque state of affairs that we see when we consider IPPs. I also briefly thank Frances Crook, the retiring director of the Howard League, for all the work she did and for trying over the years to improve and inform the debate about what goes on in our prisons.
Our prisons are a secret world. When I was a Member of Parliament I once explained to a local journalist that I thought that all prisons should of course have walls to keep the prisoners in and to protect the public from the prisoners. However, all these prison walls should have windows in them so that the public could see in and learn what is being done on their behalf inside these prisons, but also so that the prisoners could see through those windows out into the world and into society, to see that if things went well for them and if their life, educational and employment prospects were improved by what they were doing and learning in prison, there was a world out there waiting to welcome them back. The journalist said, “Have you considered the public expenditure implications of building all these windows in those walls?” It is occasionally possible to lose the will to live when discussing something as complex as the state of our prisons.
Where it is not necessary to lose the will to live is when one listens to the noble Lord, Lord Blunkett, explaining and accepting—very publicly and bravely—that he got it wrong in the early part of his time as Home Secretary. I congratulate him. Most former Home Secretaries—most politicians—spend their post-government life rewriting history. This former Home Secretary has accepted that he got it wrong—I thank him for it—and he is now trying to assist us in getting it right again. I also congratulate the noble and learned Lord, Lord Falconer, on following on that particular train of thought. It behoves all of us in this Chamber, whether we are interested in this subject directly or indirectly, to mend this problem, and it is a problem  that needs mending. The noble and learned Lord, Lord Brown, describes IPPs as the greatest stain on our justice system, and he is entirely right. However, it is a stain that we can remove.
I tabled Amendment 208E and have co-signed Amendments208F and 208G, but I could have co-signed any of these amendments. I simply want to see IPPs abolished. I want to see all those who are on IPPs at the moment either released under supervision or transferred to some other form of more humane sentence which gives those people hope, a life, an aspiration of freedom and a future which they can aspire to. At the minute, they are literally hopeless.
Some 14 or 15 years ago, when I was shadow Minister for Prisons in the other place when the Conservative Party was in opposition, I made a point in that job of visiting as many of the prisons in our system in England and Wales as I possibly could. There were then about 140 or 145 institutions—adult male prisons, adult female prisons, YOIs and secure training units—and I think I managed to get to about 70 or 75 of them. On a number of occasions I visited prisons where there were IPP prisoners, and the governors universally said, “This cohort of prisoners is the most difficult to manage because they have no hope.” They did not know when they were going to be released or whether they were going to be there for ever or whether they might be released in a year or two’s time. They had no idea which it was going to be.
One of the reasons I tabled Amendment 208E is that proposed new subsection (2) of that amendment describes the things within prison which are hopeless and entirely damaging to a fair justice system. Amendment 208E is one of several “six month report” amendments—I say in parenthesis that Amendment 208F is the one to go for if we are to do anything of a positive nature this evening. Amendment 208E, along with others of these “six month report” amendments, describes what is wrong with the system as it currently is. It asks
“whether there are sufficient places available for prisoners serving sentences of IPP on offending behaviour programmes”.
No, there are not. It asks
“whether prisoners serving sentences of IPP are able to complete offending behaviour programmes in appropriate time to aid progression milestones such as parole or recategorization”.
No, they cannot do that. You may be queuing up for a course while you are in, let us say, Maidstone Prison, and then you are churned—moved to another prison—so you will go to the back of the queue, or moved to a prison which does not have the relevant people to lead you on that particular course. Your mental and physical health records take months to follow you to your prison, and when they arrive and when the new governor or the new teaching staff of that prison to which you have been sent catch up with your request—guess what? You are moved to a prison in Bristol, Leeds, Liverpool or somewhere else. It is a hopeless state of affairs, and we should have done something about it years ago.
It follows that there are not sufficient places available for prisoners serving sentences of IPP in prisons providing progression regimes, for the practical reasons I have just pointed out. Is there availability of other opportunities for prisoners serving IPP sentences to enable them to progress and demonstrate reduced risk, particularly  for those who have completed opportunities afforded to them by offending behaviour programmes and progression regimes? Of course not; it is a shambles—a cruel shambles.
Even on what I call ordinary life sentences, prisoners can do a particular course to demonstrate that, before long, they may become suitable for release on licence. However, if they do them within the first two or three years of their imprisonment, then remain in prison for another 14 or 15 years, all that they may have learned on that course all that time ago has long been forgotten, and all the people who have supervised them in prison have no corporate memory of what prisoner A, B or C learned all those years ago. So when they are reassessed after having completed the tariff, they fail the assessment. Can they get on a course again? Of course not. They are told, “You’ve been on one already. You’ll have to wait your turn, after all the other people”. The simple, practical organisation in our prisons is not fit to cope with this troubled and troubling group of prisoners on IPPs.
I will end on this point. The thing that a convicted defendant on sentence wants to hear is not a moralising judge telling them that they have behaved very badly and must never do it again, but the number—that is, how long they are going inside for. When they are sentenced to an IPP and hear the tariff of two or five or 10 years, that is the number that sticks in their mind among all the noise and clatter that is going on in their heads and in the courtroom. It is only when they get into the prison van—the sweat box—or get to the prison for their first reception that it dawns on them that the sentence does not mean two years; it means for ever unless they can do something to help themselves. Of course, because of the lack of availability of the factors that I have just addressed, it is almost impossible for that prisoner to help himself to improve, to see some chance of release and to come out as a better citizen again.
This obscenity must now end. I am sure that my noble friend the Minister and his government colleagues have it within them to do that, and I am sure that they will.

Bishop of Gloucester: My Lords, I add my voice to those who have already spoken in favour of these amendments. I declare my interest as Anglican Bishop to Her Majesty’s Prisons.
All the detail I was going to mention has already been carefully and expertly explained; again, I pay tribute to the organisations that have been named, including the Howard League, the Prison Reform Trust and UNGRIPP, for their excellent briefing reports and research. It resonates strongly with all the conversations I have with people in prison and family members who write to me or send me emails. The thing I am struck most by is the sense of hopelessness; many noble Lords have mentioned that. I am a proud patron of Prison Fellowship, whose motto is:
“We believe no one is beyond hope.”
We really need to listen to that in this debate.
The indefinite IPP licence goes against all the evidence about what enables people to move away from offending. As we have heard, people need to feel hopeful about their future. They need to have a plan to work at. As we have heard, the IPP licence stops people being able  to look forward to a different future. It disrupts relationships and breeds anxiety, despair, hopelessness and alienation. Much more could be said, but I think it has all been said; I am heartened by the strength of feeling so apparent in your Lordships’ House.
I agree that this Bill provides a timely opportunity to address this enormous injustice of IPP sentences. I stand with those seeking to make these changes.

Baroness Chakrabarti: My Lords, it is a privilege to follow the right reverend Prelate and precede, I think, the noble Lord over there. I just want to say, it all may have been said, but not by me. None the less, I will be brief because—it is not often I feel like saying this—it has been an absolute privilege to listen to today’s debate. Every point of morality, sensible practice and detail on this compelling menu of amendments has been made.
I want to make the briefest of pleas to the Minister, who has been a distinguished commercial barrister for many years; I, by contrast, have been a humble student of the miserable world of justice and home affairs. I also want to make a political point, of all things, in a debate that has been so rarely elevated above politics. I believe that today presents the beginning of an historic opportunity in our politics in this country. For most of my adult life—indeed, pretty much all of it—we have been embroiled in an arms race, particularly around incarceration, that has put us on a path which is more like the American one than a sensible path from anywhere else, let alone the path we might be on. How often do you hear someone of the stature of my noble friend Lord Blunkett say, “This was a mistake. Hands up; it is a fair cop. I am offering a bipartisan hand to help set this right”? I have not heard anything like that in justice and home affairs in my time as a student of these issues.
What is more, this is about rectifying a mistake that the Minister’s party already accepts was a mistake; that is why these sentences are no longer available to new offenders. The Minister, his party and his Government ought to be half way—indeed, three-quarters of the way—there already, in rectifying what my friend, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, called “the great stain”. We are so close. The Minister has an historic opportunity to begin to put this right. How often does an opportunity like that come about? The point about this stain is that it is wrong in itself, and it is terrible for all those hopeless people whom the noble and learned Lord, Lord Garnier, the noble Baroness, Lady Burt, and other noble Lords mentioned. It is also a symbol of both injustice and the arms race I mentioned. That is why this opportunity is so precious and important.
It is ever harder to justify an unelected second Chamber—your Lordships’ House—nearly a quarter of the way into the 21st century but, if the Minister listens to the debate and does not slam the door closed to reason, today might just be enough for the moment.

Lord Ramsbotham: My Lords, I strongly support all the amendments in this group, not least because the cause of prisoners serving indeterminate sentences has been languishing ever since such sentences were formally abolished by LASPO in 2012.
I commend the tireless work of my noble and learned friend Lord Brown of Eaton-under-Heywood on their behalf. For nearly 27 years, since my first inspection as Chief Inspector of Prisons, I have been campaigning for changes to be made to the operational management structure of the Prison Service to bring it in line with the practice in every business, hospital or school: to appoint named people responsible and accountable for particular functions within the organisation concerned.
In the case of prisons, I have campaigned for separate directors to be appointed for every type of prison, and for certain types of prisoners—lifers, sex offenders, women, young offenders, the elderly, foreign nationals, and those serving indeterminate sentences. Imagine how easy it would be for Ministers interested in IPP, for example, to send for the relevant director and question him or her about what was happening or not happening to all prisoners in that category. I had hoped that somewhere in the 298 pages of this monstrous Bill, space might have been found for something so practical. However, as that is clearly not going to happen, I stringently commend the change to the Minister.

Lord Judge: My Lords, I find myself in a puzzle. The Government of the noble Lord, Lord Blunkett, and the noble and learned Lord, Lord Falconer, who introduced this form of sentence, have indicated that they would not have introduced it if they had known how it would work. A different Government, the coalition Government, of which the present Government formed the majority, saw the iniquities of it and Parliament got rid of it. Therefore, we now have a strange system. We have people in custody under the old system and people with the same record, the same problems, the same issues arising, who are not subject to the same sentences as each other. That seems rather strange, but in terms of an Act of Parliament, it is an utterly illogical situation for the Government now not to at least address the consequences of the sentence having been abolished in the 2012 Act.
Quite rightly, that was not made retrospective. I see that retrospectivity must be avoided, but we have been going on with the sentence that has been abolished for eight or nine years now. We all know that something must be done. I am not making a personal comment about the Minister, but everybody knows that it must be done, including Ministers in the Home Office and the Ministry of Justice. We must do something about it, in fairness and logically.
I added my name in support of the amendment tabled by the noble and learned Lord, Lord Brown, but all these amendments are asking one simple question: “You must do something, so will you now tell us what it is?” It is no good us being in a situation where “Something must be done” when “What is going to be done?” is the real question.

Lord Macdonald of River Glaven: My Lords, I hope that the Minister can acknowledge that this is one of those comparatively rare occasions when noble Lords from all parties and none and from across the House have come together in the face of overwhelming evidence that a great public policy, in this case a great  criminal justice policy, has gone disastrously wrong. It is beyond argument that IPPs have resulted in periods of incarceration out of any reasonable proportion to the gravity of the original crimes for which they were imposed. That is wrong. It is beyond any reasonable argument that these sentences are beyond any proportion to the risk that continues to be represented by any of the offenders to the public. That is wrong. There is the strongest evidence before the Government that IPPs are observably responsible for persistent and continuing injustice. The noble Lord, Lord Hunt, spoke very movingly about the reality of those injustices for those who are suffering under them.
I declare an interest as president of the Howard League and in doing so repeat what a number of noble Lords have said about the contribution made by Frances Crook. She has been a monumental figure in criminal justice, which is better today for her work than it would have been without it. The Government now have an opportunity to make a startling improvement to our criminal justice arrangements by the simple expedience of doing away with IPPs in their entirety; I agree with the noble and learned Lord, Lord Garnier, in this respect. The evidence could not be clearer. I support all these amendments and urge the Government now, in the face of this overwhelming case, to act.

Lord Pannick: My Lords, I hope that when the Minister responds to this debate, he can put away the departmental brief and respond to two simple questions. The first is whether he accepts that the present system is unacceptable. The second, which the noble and learned Lord, Lord Judge, posed, is: what will the Government do about it? This is not a new problem. The Government have had years to think about the options and to consider what to do. The noble Lord is already a very distinguished Minister of Justice. Can he say what the Government will now do to address a manifest injustice?

Lord Hogan-Howe: My Lords, I have met a few of the people who these sentences are designed to control, and quite often they are terrifying. Some of the things that they have done are awful. However, the present situation is indefensible. It is unfair because, as the noble and learned Lord, Lord Judge, has said, they do not know how long they will be detained, and because many of them have been detained since before the law was changed. It is really trying to deal with the basic problem of dangerousness, which is very hard to define. Doctors cannot define the mental illness that they suffer from, as has been mentioned already. This should be addressed far more clearly.
There are only two ways forward. First, many of these amendments are talking about research in the future, but we need more research into the medical definition of the type of illness which we define as “dangerousness”, of people seeming likely to commit an offence in the future. This is not mentioned anywhere in the amendments. I recommend that there is good investment to be made there.
Secondly, what is presently indeterminate must be made determinate. I do not suppose that anyone has yet argued that all the people who are detained under these restrictions should immediately be emptied from  the prisons on to the streets, but it is entirely possible to see a transfer of that risk either into the health element of prison control—Broadmoor or similar institutions—or a far better way of dealing with them within the community. To continue carrying the risk entirely within the prison estate in the numbers that are described is entirely wrong and I cannot see that it is defensible for this Government to continue doing so.

Lord Woolf: I was not intending to contribute to this debate, but I think decency requires me to do so, because looking in the past, I was the person who perhaps failed the noble Lord, Lord Blunkett, in persuading him at his time as Home Secretary of the extent of the error which he was making. I think he may remember that I did attempt at the time to dissuade him from this course, but I obviously failed and we see now the consequences of the biggest mistake made in the criminal justice system during my period as a judge. I hope that the House will bear in mind that, if a mistake of that nature is made, there is a huge burden on each one of us to try, as far as we can, to put it right.
This is the first time I have contributed on this subject and I apologise to the House for not doing so earlier. For reasons of health, I was not for a time taking part in the activities of the House, but I thought the House would like to know how I feel about this as a former Lord Chief Justice and the person who carried out an important report into prisons, which I hoped would provide a better system than we have now.

Lord Marks of Henley-on-Thames: My Lords, I am humbled by speaking at the end of an extraordinarily strong debate. It was eloquently and, as many have pointed out, courageously opened by the noble Lord, Lord Blunkett. He has been supported by many movers of amendments and others, among them the noble and learned Lord, Lord Brown of Eaton-under-Heywood, whose campaigning against IPPs has been a model for us all. I hope the Government will take note of the unanimity in this House on the issues surrounding IPPs.
From these Benches, my noble friend Lady Burt, with her extensive experience of working in the Prison Service and of the injustice of IPPs to individual prisoners, has spoken movingly to her amendments and supported all the amendments in the group, so I will add only very briefly to what she and others have said.
These amendments give this House a chance to send this Bill back to the House of Commons to give it an opportunity to right a wrong that has for far too many years been a scar on our penal system, on our national self-esteem and on our international reputation for fairness and justice. The continuation of the unwarranted detention of IPP prisoners—1,700 never released and 1,300 recalled for breach, often for utterly trivial reasons—has kept them incarcerated for years on end, way beyond their tariff terms, without any moral, intellectual, philosophical or human justification of any kind.
We support the ending of this injustice unreservedly. At Report, we will vote for whatever of the amendments then before the House appear best placed to end this disgrace as quickly as possible.

Lord Falconer of Thoroton: My Lords, I have already spoken once. I speak very briefly to say two things. First, what an impressive debate this has been. I draw attention in particular to the speeches of my noble friends Lord Blunkett, Lord Hunt of Kings Heath and Lord Bradley, the noble Lords, Lord Moylan, Lord Ramsbotham and Lord Hogan-Howe, and the noble Baroness, Lady Burt. I draw attention to them because they are not lawyers; they are people who have had contact in other ways with this system and come to the conclusion that it should end.
Secondly, we on this side of the House support all the amendments. Some are alternative ways of dealing with a particular problem, but we support all the proposals. We are not, in the amendments before the House, going as far as some of the speeches went. We are not suggesting the immediate abolition of the sentence. We are saying: support for those in prison to try to get released; support for those who are released to get proper help; and an easier process of having consideration of the licence being got rid of.
As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the one with the teeth is Amendment 208F. It says you get rid of these licences and release the person if they have served more than the sentence for the offence. If you have been sentenced to five years in prison, and that is the maximum sentence, once the maximum is reached, unless the detaining authority can prove that you are still a risk, you get released. If you are still below the maximum sentence for the offence for which you were convicted, but you have been in for 10 years, the same principle applies. It is an incredibly sensible way of ensuring the sentence goes for those who have got it, but you keep inside those who represent a severe danger, as long as the detaining authority can establish that they remain a danger.
I very much hope that the Minister will be able to give some words of comfort to the effect that these very moderate proposals will be taken up by the Government. If there are amendments to these proposals, of course, everybody in the House will consider them, but it is time for a change. These modest proposals require consideration for this Bill, because the biggest disappointment would be to be told that it is coming at some later stage.

Lord Wolfson of Tredegar: My Lords, Amendments 208A to 208H relate to offenders serving sentences of imprisonment for public protection commonly known as IPPs. The noble Lord, Lord Pannick, who was very kind about my work as a Minister, invited me to put away the departmental brief. I am not going to do that, not least because it might mean that my work as a Minister here ends somewhat prematurely. But that is not inconsistent, I hope, with making it clear to the Committee that I have listened carefully to the debate and to the points raised around the Chamber. I will reread the debate in the Official Report as well.
Of course, I feel the mood of the Committee—that would be impossible to miss. The speeches have been powerful and sometimes heartfelt. Without wishing to ignore others, may I say the contributions from the  noble Lord, Lord Blunkett, and the noble and learned Lord, Lord Woolf, about their personal part in the genesis of IPPs have been unusual and moving. This politician, may I say to the noble Baroness, Lady Chakrabarti—although I see myself still as a lawyer, not a politician—certainly is trying to get this right. I do not think this is an issue which admits of easy analysis. To use the words of the noble and learned Lord, Lord Judge, it is something of a puzzle, which requires looking at carefully and solving.
I am grateful to those noble Lords who have met with me and discussed the issue. I am sure we will have further discussions between now and Report. I should say that I read Matthew Parris’s column at the end of July as well.
I will go through the amendments and set out the Government’s position, then I will come back at the end to some more general points. Four of the amendments, Amendments 208A to 208C and 208E, the latter from my noble and learned friend Lord Garnier, would require the Government to conduct a review on matters such as sentence progression, resettlement and supervision of prisoners serving an IPP sentence, and to lay a report before both Houses of Parliament.
The Government recognise that work needs to be done in relation to this group of prisoners. I will set out the work that has been done so far. We have put together what I think has been a successful action plan dedicated to the rehabilitation and risk reduction of IPP offenders. We continue to work to increase opportunities for IPP offenders to progress through their sentences via this plan. A qualified psychologist leads a review of the case of every IPP prisoner who is not making the expected progress. Between July 2016 and September this year, which is about five years, just under 1,700—1,679—reviews were completed; 440 prisoners were subsequently released and a further 474 secured a progressive move to more open conditions.
My noble and learned friend Lord Garnier commented on the availability of courses for IPP prisoners to help them make that progress. It is right that during the pandemic there were fewer places on some group interventions. We asked offender managers to look at other sorts of interventions to draw evidence from them for the parole reports. However, we have now been able to ramp up the provision again. Not all IPP prisoners will require the same interventions, of course, but we try to make sure that each prisoner has a suitable pathway, as it is called, to a future safe and sustainable release. That is the focus of the programme. There is a range of interventions, including places on progression regimes, other accredited programmes and places in open prisons. Where a programme is not available for an offender, the prison offender manager would seek to have the prisoner transferred to a prison where the programme is available, subject to a risk assessment and available places. In the meantime, other work would be identified so that the prisoner could undertake that work.
We believe that the action plan is working. High numbers of IPP prisoners are being released each year and the proportion of positive Parole Board decisions remains high. I do not think anybody mentioned this, but let me put it on the record that the Justice Select  Committee in the other place has recently launched an inquiry into IPP sentences. Its stated aim is to examine
“the continued existence of IPP sentences and to identify possible legislative and policy solutions.”
The Select Committee will scrutinise what the Government are doing. I have no doubt that it will provide recommendations, which the Government look forward to hearing. I therefore underline that we are doing work in this area. We do not believe that a separate government-led review is necessary at this time.
I turn to Amendment 208D from my noble friend Lord Moylan. Currently, an IPP offender may apply to the Parole Board to have their licence terminated once 10 years from their first release from custody has elapsed. To do that, the offender must give their permission to the Secretary of State to apply to the Parole Board for licence termination on their behalf. The first part of this amendment would therefore remove the legal requirement for the offender to give their permission. Instead, offenders would be automatically rereferred for consideration each year, were they unsuccessful. The second part would change the time period from 10 to five years.
Even without this amendment, the Government expect a large number of applications for licence terminations over the coming years as more offenders become eligible to apply. We do not believe that this will be inhibited by the need for the offender to give permission.
Of course, there is no guarantee that referrals will be successful. The decision lies not with a Minister but with the independent Parole Board. We believe that offenders being managed under licence in the community is a vital part of longer-term rehabilitation and of public protection. The Parole Board will agree to terminate a licence only if an offender’s risk has reduced such that the board is satisfied that the licence and its conditions are no longer necessary for the protection of the public.
With the greatest of respect, I do not agree with the noble and learned Lord, Lord Brown, or the noble Baroness, Lady Burt, that the Parole Board is risk averse. We believe that the Parole Board is applying properly what we consider an appropriate and suitable test. However, we have concerns that, when its various parts are put together, the amendment could cause the Parole Board to consider many applications that have little to no chance of success.
I should also point out that IPP offenders, through their community offender manager, are already eligible to apply to have the supervisory elements of their community licence suspended, again at the decision of the independent Parole Board. They can apply for that after five continuous successful years on licence in the community. If supervision is suspended, they are no longer required to attend supervision sessions with the community offender manager, or to seek approval for where they are going to live or if they want to go abroad, as long as those decisions do not breach any victim-related conditions that remain active. We believe that living under a licence which is suspended is not onerous and allows offenders to lead very normal lives.
My noble friend Lord Moylan commented that offenders may be unaware of how and when their licence might be terminated. It is ultimately the offender’s responsibility to understand the conditions of their sentence and what they can do to end it, even when the active part of the licence has been suspended, but—and this is an important “but”—the probation service does and will continue to make every effort to contact those eligible to apply to have their licence terminated and to seek their permission to submit an application. Unsupervised offenders on licence can still contact the appropriate probation office to discuss any relevant matters, including to make arrangements for licence termination. The probation service will support that application when its assessment is that the licence is no longer needed for the protection of the public. For these reasons, we do not agree that the licence changes are necessary.
Amendment 208F is intended to reverse the burden of proof, in part, for the test applied by the Parole Board when considering whether certain IPP offenders are safe for release. This would apply to offenders who have served a prison sentence 10 years or more beyond the minimum term or longer than the maximum equivalent determinate sentence for the offence.
The current Parole Board release test is constructed so that the board must not give a direction for release—it is a negative test—unless it is satisfied that it is no longer necessary on the grounds of public protection for the prisoner to remain confined. The effect of this amendment for offenders within its scope would be that the burden of proof would be reversed, so that the Parole Board would have to direct release unless it is satisfied by evidence from the detaining authority that further detention is necessary for public protection.
Of course, I understand the reason behind that change in the burden of proof, but we do not believe that it would have a material impact, because the Parole Board would still have to undertake an assessment of risk of harm and reoffending to make a judgment on whether the risk could be managed effectively in the community. We believe that it is one of those cases in which the matter of where the burden of proof lies will not likely affect the underlying decision.
Amendment 208G relates to licence termination. It would automatically terminate the licence of any IPP offender who had been released for two years and was not recalled in that time, unless the Secretary of State applied to the Parole Board to extend the automatic termination point by up to one year. The key point is that the licence termination is automatic. The noble Lord, Lord Blunkett, said that recall provisions had been strengthened and made more draconian, and the noble and learned Lord, Lord Falconer of Thoroton, made a similar point about the ramping up of the recall provisions, but these were not changed after the IPP sentence was introduced or, indeed, after it was abolished; the provisions have remained the same.
I listened very carefully to the case of Ella, as we are calling her, which the noble Baroness, Lady Burt, spoke about. Of course, I obviously do not know the details of that particular case, but I can say that recall provisions for IPP offenders in fact have a higher threshold than determinate sentence recalls, as there  has to be a causal link between the original offending and the new behaviour to make it possible to recall the IPP offender. So, the threshold is actually higher for IPP recalls.
Secondly, we have to bear in mind that focusing only on criminality when an IPP offender is out on licence is not, I suggest, always the right way of looking at it. What may appear to some to be minor breaches of licence conditions can be, when viewed in the light of what might be called the index offence—or the original offence—evidence of escalating risk. It is risk that we are focused on here—risk to the public at large, which justifies a recall to protect the public. Therefore, it is not always the case that one is looking only at criminal acts when the IPP offender is on licence; we may also have to look at other behaviour that is related to the index offence and shows an escalation of risk.
The licence is an important tool by which the probation service manages the risk—it is all about risk —which an offender presents to the public. Without the prohibitions and requirements in the licence, the probation service would lack the power to manage and mitigate the offender’s risk. For example, if the offender starts drinking very heavily, and we know that the index offence—or offences—was also linked to very heavy drinking, that would be a sign of increased risk, although there may be no criminality in drinking heavily itself.
Offenders are already able to apply to the Parole Board to have their licence terminated once 10 years since their first release from custody have gone past. The Parole Board is then to determine whether it is safe for their licence to be terminated. We believe that terminating their licence automatically, without any consideration by the Parole Board, would present an unacceptable risk to the public, and for that reason we do not propose to accept that amendment as drafted.

Lord Falconer of Thoroton: None of the amendments would mean that there would not necessarily be a consideration by the Parole Board, including Amendment 208G, which is the two-year automatic end unless the Government made an application to the Parole Board, so I am not quite sure what the basis of rejection of that one is.

Lord Wolfson of Tredegar: I am not basing it only on what I have called automatic termination. The scheme set out in Amendment 208G would represent a very different approach to management on licence and, for the reasons I have set out, that is not a form of management which we think provides adequate protection to the public. I may come back to that.
Amendment 208H creates a power for the Secretary of State to release an IPP offender who has been recalled to prison, so long as the Secretary of State is satisfied that it is not necessary for public protection for the offender to remain in prison. The position at the moment is that the Parole Board has a responsibility to assess whether offenders are safe to be released into the community, even after an IPP offender is recalled to prison. They can take a decision to rerelease from only 28 days after the offender is recalled. We believe that the Parole Board’s expertise in determining whether  offenders serving indeterminate sentences are safe to be released is, as I said, an essential tool of public protection.
If I may, I come back to where I started, with the words of the noble Lord, Lord Pannick. Again, I am grateful for his kind words. I agree that there are certainly problems with the current system; we are looking at it. We believe that our IPP action plan has achieved significant results and we keep it under constant review. The noble and learned Lord, Lord Judge, in what I have learned to be his habit of putting his finger on the point at issue, asked, “Well, what is going to be done?” I hope that I have made it clear that I have listened to the debate very carefully, and that I have no doubt of the mood and the strength of feeling of the Committee. I am also sufficiently acquainted with the ways of this House to anticipate what might or might not be moved on Report as and when we come to it. I can say this afternoon that I will continue to work on this issue—a number of noble Lords know that I have been working on it already—and to listen to the debate, but for the moment, I ask noble Lords who tabled this amendment to withdraw it.

Lord Blunkett: My Lords, there can be no disagreement that this has been a thoughtful and deeply impressive debate—the kind of occasion that does massive good to the reputation of this House. I hope, therefore, that the Minister’s words at the beginning and end of his response will give us some hope for the future. On a lighter note, I have to say that the noble and learned Lord, Lord Woolf, gave me so much advice when I was Home Secretary that I have difficulty remembering which bits of it I took and which I did not.
On this occasion, I have said already that we clearly have got it wrong, and we now have the opportunity to put it right. The House of Commons Justice Committee has not yet started its process; even with the length of debate on the Bill and the number of days that will be added, it will not have reported in time for us to be able to use this vehicle, and I see no other vehicle coming down the road. We have a chance and, given the Minister’s opening and closing remarks, we may have the opportunity to get this right. It would be admirable and most sensible if the Government were able to bring forward their own proposals before Report, through amendments, guidance and any further regulation by subsidiary legislation they are prepared to use, but if we do not get some movement in time for Report, I believe there is unanimity across all parts of this House that we will have to take action. When we do, I hope that we will have the kind of unanimity we have had this evening. I beg leave to withdraw the amendment in my name.
Amendment 208A withdrawn.
Amendments 208B to 208H not moved.
Clauses 116 to 124 agreed.

Amendment 209

Baroness Burt of Solihull: Moved by Baroness Burt of Solihull
209: After Clause 124, insert the following new Clause—“Maternity services in prisons  (1) The Secretary of State must provide appropriate midwifery care within the female prison estate.(2) “Appropriate midwifery care” means—(a) midwifery care that is appropriate to a custodial setting;(b) maternity services that are suitably resourced to provide—(i) an appropriately qualified midwifery lead in each prison to oversee all aspects of perinatal care;(ii) a maternity pathway for prisoners that includes a process for women who decline to engage with services;(iii) access for prisoners to psychological and psychiatric services;(iv) training for staff in trauma-informed care;(v) training for staff in neonatal and child resuscitation procedures; and(vi) appropriate emergency equipment for children and neonates.(3) The Secretary of State may provide guidance on how to respond to births in prison.”Member’s explanatory statementThis amendment builds on recommendations from the Prisons and Probation Ombudsman investigation into the death of Baby A at HMP Bronzefield to ensure there are appropriate maternity services in the female prison estate.

Baroness Burt of Solihull: My Lords, Amendment 209 seeks to reinforce the existing provision of maternity services for pregnant women and their babies in prison. Noble Lords who follow these matters will know that many women’s prisons have mother and baby units, but they are not equipped to facilitate childbirth, and the birth should always take place in hospital. However, around one in 10 does not: either the baby is delivered on the way to hospital or still inside the prison.
I have experience to bring to bear on childbirth in prison which I imagine no other Member of your Lordships’ House possesses. I have been, at least nominally, in charge of a prison when an inmate started labour. I was in my early 20s at the time, a new and highly inexperienced assistant governor at Holloway Prison on evening duty, so nominally in charge of the jail. The news that an inmate had started labour was received with glee by the officers, who delighted in telling me the good news and watching the expression of panic on my face. Fortunately for me, and the woman giving birth, these officers were highly experienced in handling these circumstances. An ambulance was summoned, and the mother-to-be was promptly sent off with an escorting officer to hospital. The outcome was a happy one.
More than 40 years later, pregnant women are still sent to prison, locked up with no agency to determine their fate, and the outcome is sometimes very different for the mother and the child. Now is not the time to delay your Lordships with an argument for not sending pregnant women to prison, much as I would like to, but it is important that provisions are watertight and that women and their innocent babies are kept as safe and well as possible because we know that things can go very wrong.
I turn to the scandal of Baby A who was born at HMP Bronzefield on 27 September 2019 and who died alone with her mother, not to be discovered until the following morning. The pathologist was unable to determine whether this baby died before or after birth.  HMP Bronzefield has a mother and baby unit, but for some reason Ms A was deemed unsuitable for the unit, so she and her unborn baby were left to the mercy of the general prison staff, medical and general, who regarded her as difficult. I am sure that she undoubtedly was difficult. Going back to my time at Holloway, I remember being put in charge of what was then termed the Borstal unit. That was full of difficult young women who presented immense behavioural challenges to the staff and with whom they were very unpopular. It was not until I went into the backgrounds, upbringing and abuse that those young women had suffered that I began to understand what had contributed to that behaviour.
Forty years later, Ms A was one such vulnerable young woman. She was only 18 years old, but her young life was already beset with abuse and trouble. I know what a pain a young prisoner can be. I was in charge of a whole wing of them, and I get why Ms A was not Ms Popularity with the staff, but it was known that she was extremely vulnerable, mistrustful and terrified of having her baby taken away from her. The ultimate irony in the case of Ms A is that she had not been convicted of a criminal offence. She was on remand, and three days after she had suffered the trauma of giving birth alone in her cell and losing her baby, this vulnerable, traumatised young woman was released on bail.
I do not want to pile further agony on the staff at HMP Bronzefield specifically, but it is crystal clear that the service given to troubled pregnant women in prison is not fit for purpose, hence this amendment, which sets out the very least a pregnant woman should receive, whatever her circumstances. The amendment is based on the recommendations of the Prisons and Probation Ombudsman in its report and subsequent inquiry: an appropriately qualified midwifery lead in every woman’s prison; a maternity pathway to include prisoners who decline to engage with the maternity services available; making sure that prisoners have access to psychological and psychiatric services; training for staff to understand and deal with young women—and men, for that matter—who have experienced trauma which is contributing to their behaviour; appropriate training to deal with emergencies for neonates and children; and the physical tools to resuscitate them.
I acknowledge and welcome the work that is being done in the extensive review of care for pregnant women, which was published in September in the pregnancy, mother and baby units and maternal separation in women’s prisons policy framework. There are some helpful recommendations, including early contact and signposting to services, more extensive central reporting on women in MBUs including reasons for non-admission decisions and additional welfare checks. However, I still look forward to hearing what the Minister has to say about these recommendations in my amendment and how people such as Ms A and her lost baby will be better helped in future. I beg to move.

Baroness Jones of Moulsecoomb: I congratulate the noble Baroness, Lady Burt, on her extremely moving opening speech. I agree wholeheartedly that pregnant women should not be in prison. We have abysmal conditions in many jails and they are not the place for a pregnant woman. A pregnant woman might be difficult. I have been pregnant twice and I can guarantee that I  had some difficult days—some people might argue that I am still having them. When women suffer in this way—and trans men who are having babies—there are lifelong repercussions, I hope for the Government as well as for the women and their babies.
The Howard League for Penal Reform has highlighted the fact that pregnant women in prison are routinely denied access to suitable maternity care and that babies have died as a result. Many women and transmen in prison have very complex needs physically and sometimes mentally. As the noble Baroness, Lady Burt, explained, they often have a history of abuse, neglect, addiction and poverty. The Government are not helping. They are not recognising those problems and do not understand their role; while prison is a punishment, rehabilitation has to take place afterwards.
Women in prison should receive at a minimum the same standard of maternity services as women outside. Of course, they often have additional challenges and are in need of specialist midwifery care, which should be supplied. When we punish these women in prison, we also punish their babies, and that cannot be right. Getting this right will change the lives of prisoners and families, and have an impact for generations. Like the previous amendment, this is something the Government have to pick up.

Lord Hunt of Kings Heath: My Lords, I have added my name to this amendment and I warmly commend the speeches of the noble Baronesses, Lady Burt and Lady Jones. Reading the report of the shocking death of Baby A is salutary indeed. It took me back to the debate we had earlier in Committee, looking at the special needs of women in prison and the effect of custody on those women and their children.
I refer back to the speech made by the noble Lord, Lord Marks, when he referred to the briefing from the charity Women in Prison. This related how more than 53,000 children each year were affected by their primary carers being sent to prison and that 95% of children whose mothers are in prison were forced to leave home. One sentence encapsulated it for him:
“‘We’ve been sentenced’, says a mother, ‘but they’ve been sentenced with us.’”.—[Official Report, 1/11/21; col. 1036.]
The point was also at the heart of the contribution made by the right reverend Prelate the Bishop of Gloucester. She said that parental imprisonment was, for the children concerned, a well-recognised predictor of mental ill-health, poor educational achievement and employment prospects, and future criminality. It sets a context for discussing the particular circumstances of Baby A and pregnant women prisoners.
Of course, there are many lessons to be learned in respect of both HMP Bronzefield and the prison system as a whole. The report of the Prisons and Probation Ombudsman made a number of very important recommendations. In particular, there was a recommendation of principle that, as the noble Baroness referred to, all pregnancies in prison should be treated as high-risk by virtue of the fact that a woman is locked behind a door for a significant amount of time and there is likely to be a high percentage of avoidant mothers who have experienced trauma and are fearful of engaging with maternity care.
The noble Baroness, Lady Burt, listed some of the key recommendations. I just want to focus on what I would call “system recommendations”. A specific recommendation was made to the director of health and justice for NHS England to consider the findings and recommendations of the report and ensure that the learning is applied across the women’s estate. It went on to say that this should include recognition that a clinic-based community model of midwifery care was not appropriate for custodial settings, and that all pregnancies in prison were high-risk. What response has been received from NHS England and what co-operation is being given by NHS England to the Prison Service to take forward that recommendation?
I, like the noble Baronesses, welcome the new policy framework for prisons on pregnancy, mother and baby units and maternal separation as a significant step forward, but I am sure we need to do more. I was struck by the comments of Dr Edward Morris, president of the Royal College of Obstetricians and Gynaecologists, who said:
“The next step is to ensure that these policy commitments are translated into practice on the ground across all women’s prisons, and that all staff in women’s prisons receive the right training to provide women with the information and support they need. Alongside strong links to the local midwifery team, we feel strongly that all maternity services located near to a women’s prison should have a designated obstetrician with responsibility for ensuring high quality care for women in prison.”
I very much agree with that. I, too, would welcome some reassurance from the Minister that his department is taking these recommendations seriously. I particularly urge on him the need for the closest co-operation between his department and NHS England. At the end of the day, the lessons learned from this tragic case must be applied to the prison system as a whole.

Lord Falconer of Thoroton: My Lords, I support this amendment, and very much hope that the Government will either accept it or explain what they are doing in response to the report of the Prisons and Probation Ombudsman on the case of Miss A and her baby. The noble Baroness, Lady Burt, has explained the facts; it is worth looking at them in a little more detail.
Miss A, as she is called in the report, was remanded in custody on 14 August; she was pregnant. It does not say in the report whether the court knew that she was pregnant, but that is not what this amendment deals with. On 19 August, she was seen by a safeguarding midwife, who said that her estimated delivery date was between 24 September and 14 October. On 26 September, she was put on extended observation, which means she would be seen by a nurse in the morning, at lunchtime, in the evening and twice overnight. On that very day, 26 September, she went into labour. At 8.07 pm, 8.32 pm and 8.45 pm, she called for help and, in particular, called for a nurse. All three calls for help were ignored. At 9.27 pm and 4.19 am that night, she was inspected—I assume through a cell hatch—for a regular roll call, and nothing untoward was spotted. At 8.21 am the next morning, other prisoners reported that there was blood in her cell, and at 9.03 am an officer identified that she had given birth overnight and that the baby had died.
It is an absolutely terrible story, as the ombudsman describes. As the noble Baroness, Lady Burt, said, the ombudsman made specific recommendations, which are reflected in proposed new subsections (1) and (2) of her Amendment 209. It says that the Secretary of State must provide “appropriate midwifery care” within the female prison estate, and then defines “appropriate midwifery care” as meaning
“midwifery care that is appropriate to a custodial setting … maternity services that are suitably resourced to provide … an appropriately qualified midwifery lead in each prison to oversee all aspects of perinatal care … a maternity pathway for prisoners that includes a process for women who decline to engage with services”—
as Miss A may have done—
“access for prisoners to psychological and psychiatric services … training for staff in trauma-informed care … training for staff in neonatal and child resuscitation procedures; and … appropriate emergency equipment for children and neonates.”
A lot of those go beyond what would have made a difference in this particular case, but if those recommendations of the ombudsman had been given effect to, the tragedy almost certainly would not have occurred. This gives the Government the opportunity to respond in this House to those recommendations, all of which seem sensible and will not impose a substantial financial burden on the prison estate, because there are not that many women’s prisons. If the Government are not willing to accept these proposals, what are they going to do about the problem? Can they give a reason why a duty such as this on the Secretary of State should not be expressed in the legislation?

Lord Wolfson of Tredegar: My Lords, I am very grateful to the noble Baroness, Lady Burt, for tabling this amendment. As the explanatory statement makes clear, the amendment builds on the recommendations of the recent independent investigatory report by the Prisons and Probation Ombudsman into the death of Baby A—as we are calling the baby—at HMP Bronzefield.
I shall start by repeating what my honourable friend Victoria Atkins MP said when giving oral evidence to the Justice Select Committee’s inquiry into women in prison on 3 November. I quote her because I want to associate myself with this, word for word. We are
“very grateful to the ombudsman for her report. The facts as they unfolded in that report were truly shocking. And the fear that that young woman must have felt and the loss she is dealing with even today, we do not, we cannot contemplate anything of that nature ever again within the prison estate.”
My deepest condolences remain with those affected.
The death of Baby A was a tragic and harrowing event and has rightly been the subject of several investigations and inquiries, including that by the PPO, to try to ensure that all the necessary lessons have been learned to avoid a repetition in future. The Committee may be interested to know that there is a Question on this incident on, I think, Wednesday, which will be another opportunity for the House to look at this terrible event, and I believe I am going to be responding to it.
While I point out that we are not talking about sentencing here, and the noble and learned Lord, Lord Falconer of Thoroton, was right to say so, it is right to say that when it comes to sentencing, pregnancy  is certainly a mitigating factor that is specifically taken into account in the sentencing guidelines. I should also say that it is exceptionally rare now for a woman to give birth in prison. The most recent figures, from July 2020 to March 2021, show that 28 births—90% of the total number of births—took place in hospital and none took place in prison. I understand that in the case of the missing 10%, the baby came out a bit quicker than anticipated and the birth might have taken place in the ambulance, but none took place in prison.
In response to the terrible disaster of what happened to Baby A, the previous Lord Chancellor, the right honourable Robert Buckland MP, commissioned the independent external investigation by the PPO. We have since accepted and acted upon all its recommendations for the Ministry of Justice and the Prison Service. We immediately put in place practical steps across the women’s estate, including providing all women with free phone access to local NHS pregnancy advice services and additional welfare observations for pregnant women in their third trimester. At that time we were already undertaking a fundamental review of national policy on pregnancy, mother and baby units and maternal separation in women’s prisons.
As the noble Baroness, Lady Burt, recognised and said she welcomed, that work led to a new policy framework, published on 20 September, which develops those immediate actions into national requirements for all women’s prisons, delivering on a wide range of reforms. The new framework has an extended policy remit covering requirements on perinatal care and maternal separation, in addition to mother and baby units. I hope that what I have said so far—although I will say something more—reassures the noble Baroness and the noble Lord, Lord Hunt of Kings Heath, that we are serious about our response to this matter. We are determined to take all necessary action to avoid a similar tragic event in the future.
I shall turn to the detail of the amendment and explain why, in the light of the current legislative framework, we are not persuaded that what is proposed is necessary. Currently, NHS England is responsible for commissioning almost all forms of healthcare for prisoners within both the public and private estate in England under Section 3B of the National Health Service Act 2006 as amended by the Health and Social Care Act 2012. That statutory obligation has to be read together with Rule 20(1) of the Prison Rules 1999, which states:
“The governor must work in partnership with local health care providers to secure the provision to prisoners of access to the same quality and range of services as the general public receives from the National Health Service.”
The requirement to commission healthcare services and to secure and ensure prisoners’ access to them therefore already applies to the provision of maternity services in the women’s prison estate, so we do not consider that there is any need to add a further separate obligation in statute as proposed by the amendment. What is important is that we ensure that it actually happens. I certainly do not mean to be flippant, but repeating something in statute is not the way to ensure that it happens. We are focused on ensuring that it happens. We already have the statutory obligation.
In fairness to the PPO, I should note that it did not recommend any change to the statutory framework. Rather, it said at paragraph 14:
“Overall, the healthcare offered to Ms A in Bronzefield was not equivalent to that she could have expected in the community.”
It is that provision that we are focused on—ensuring that expectant mothers in prison get the same care as they would have received in the community. The Government’s position is that we would rather focus on that than duplicate statutory provision.

Lord Falconer of Thoroton: The amendment would not be duplicating anything because it contains specific provisions that are not referred to in the other statutory obligation, so it would be clear what was required.

Lord Wolfson of Tredegar: What is required is that women in prison have access to the same maternity services as they could expect in the community. My suggestion is that once that is set out, that is a sufficient legislative obligation and the Government need to ensure that it actually happens.
I hope that nothing I have said detracts from what I said right at the start, which is that we are appalled by what happened to Baby A. It must never happen again, and we are going to do all we can to ensure that it does not. However, for the reasons I have set out, I invite the noble Baroness to withdraw the amendment.

Lord Hunt of Kings Heath: My Lords, before the Minister sits down, I would like to ask him about the relationship between his department and NHS England. What express work is now being undertaken to ensure that the NHS discharges the statutory responsibility that he has just referred to?

Lord Wolfson of Tredegar: I know that when it comes to the prison estate, there is a very close relationship between my department, the Prison Service and NHS England. Rather than read something off a screen, may I write to the noble Lord and set out a paragraph or two to assist him on that? I am happy to discuss that further with him—or it might be appropriate for the Minister in the department with particular responsibility for prisons to do so. Anyway, I will write to the noble Lord.

Baroness Burt of Solihull: My Lords, I am extremely grateful for the learned contributions that have followed my words today, particularly from the noble Lord, Lord Hunt, and the noble Baroness, Lady Jones. I have taken heart, to a degree, from what the Minister has said. I accept what he says about the difference between statute and practice. We cannot just enact laws and expect everyone to suddenly do as they are told—it does not work like that—so I think the intention is extremely important.
I shall take this away and consult the bodies that have advised me—particularly Women in Prison, to which I am very grateful. For the time being, I respectfully request to beg leave to withdraw the amendment.
Amendment 209 withdrawn.

Amendment 210

Earl Attlee: Moved by Earl Attlee
210: After Clause 124, insert the following new Clause—“Determination of sentence and predicted day of releaseAfter section 60 of the Sentencing Code insert—“60A Determination of sentence and predicted day of releaseWhere a court is deciding the length of a custodial sentence to impose on an offender for an offence, having taking into consideration all other factors, the court must not set a length of sentence that is likely to result in the offender being released on a public holiday, Friday, Saturday or a Sunday except in exceptional circumstances.””

Earl Attlee: My Lords, I shall also speak to Amendment 211 in the name of my noble friend Lord Hodgson of Astley Abbotts. Both these amendments seek to deal with the same mischief: the release of prisoners on a Friday, Saturday, Sunday or bank holiday. I do not think either is perfectly drafted—for instance, mine would not prevent release on the day before a bank holiday.
I am lucky enough to have been able to spend quite a bit of time at Brixton prison, looking at how a well-run prison works. When I was looking at the release process, I saw that the last prisoner released had been released to no fixed abode—NFA—which I was told was not unusual. This generally means that the probation officer tells the prisoner where he will sleep that night. I was not surprised to see this because I was already aware of the NFA problem, and these amendments do not seek to deal with it.
The relevant problem is that, if a prisoner is released on a Friday or other unpropitious day, he or she is far less likely to be able to properly access the necessary welfare services. I am sure that other noble Lords much more experienced in these matters will explain to the Committee the avoidable disadvantages that the released prisoner will experience. I expect that the Committee will hear that the lack of support at a crucial time could result in reoffending, even before the weekend is over. That cannot be sensible.
My understanding is that there are operational advantages for the Prison Service if prisoners are generally released on a Monday or Tuesday. I can accept that there may be an issue with the desire of judges to announce a sentence of X months, rather than X months and 23 days. For longer sentences, the approach of my noble friend Lord Hodgson may be superior in this respect but, for very short sentences—of a few weeks, say—my approach might be better. These amendments propose a minor tweak that could reduce avoidable reoffending, and I hope that they find favour with the Minister and the Committee.

Lord Hodgson of Astley Abbotts: My Lords, as my noble friend Lord Attlee has just said, I have tabled Amendment 211 in this group, and I have been very grateful for the cross-party support that I have had from the noble Lord, Lord Bird, and the noble Baronesses, Lady Lister and Lady Bakewell. I am  further indebted, as I suspect other noble Lords who take an interest in this important subject are, to the work undertaken on it by Nacro. My noble friend has persuasively talked about this issue in moving Amendment 210. I will not repeat his analysis, but I make it clear that I support it, and it seems to me to be very sensible. But I want to add a bit of gloss of my own and step back from the detail, at least initially. Wherever you stand on the political spectrum, we can surely all agree that the rate of reoffending by prisoners on release is a reproach to us all. Further, in a well-ordered society, we should be making every effort to reduce it. This is one of the things behind the amendments that he and I have tabled.
Why is this? First, there are some hard economic numbers: the costs of our Prison Service and the ancillary services to back it up are stupendous. But there are other, more hidden but very severe social costs that are difficult to measure but nevertheless have a huge impact on our society over the long term: on the prisoner’s family, partner and children, who grow up in very disadvantaged circumstances, with greatly reduced life chances. As the noble Lord, Lord Blunkett, pointed out, there are other hidden costs. The people who have suffered from crime are traumatised by it. Elderly people whose houses have been broken into find it hard to leave their homes and go out. There is a very severe pressure on the fabric of our society, and it leads to neighbourhoods in which suspicions and concerns run rife.
While of course I understand and regret the economic and social costs, the basic issue for me is the point made by the right reverend Prelate the Bishop of Gloucester: it is about common humanity and behaving decently to our fellow citizens, to offer them the best chance of getting back on their feet. At no time is common humanity more needed than at that most vulnerable time when the prisoner is first released.
With that, I turn to my amendment. It does not take a Nobel prize winner to work out that Friday is not the ideal day for release from prison. A long weekend stretches ahead—longer still if followed by a bank holiday—during which the support systems of the state and the voluntary sector are either entirely or largely shut down, as my noble friend pointed out.
In preparing for this debate, I spoke to one of the groups that has briefed us and said, “Can you get someone to talk about this?” I thought that we would get to this amendment last Wednesday, so this is from a prisoner, Michael—that is not his real name—who was released a week ago last Friday: “I was released from prison last Friday, homeless, and everyone knew for months that I would have nowhere to go when I was released. But there I was, late afternoon on the Friday that I was released, still without anywhere to go. The housing people at the council had gone home for the weekend, and I had already been told that there was no chance for a council property. So I was waiting and waiting for news of some emergency accommodation, even just for a couple of days over the weekend. No wonder people reoffend”. Michael’s resettlement worker said, “The holding cell on a Friday is rammed, as such a high proportion of people in prison are released on a Friday. The pressure on the prisons and the resettlement service is incredible. It can lead to people being released  late in the day, and, on the Friday, it becomes a race against the clock before services close for the weekend. The barriers to effective resettlement are just too high”.
My amendment, like my noble friend Lord Attlee’s, seeks to spread the days on which prisoners are released and remove the default option of the release day being predominantly a Friday. As he said, his amendment proposes that the courts should decide the specific release date. My Amendment 211 suggests that the governor of the relevant prison should be given the discretion of selecting the five-day window for the release date for a particular prisoner.
I say to my noble friend that the courts are too distant, and Amendment 210 runs the risk of a slightly clunky and administratively burdensome procedure. By contrast, the governor is the person on the spot, with day-to-day responsibility. He or she is therefore able best to take the decision that reflects the particular circumstances of each case and each individual prisoner. I recognise that, in parallel with this new flexibility, there will obviously be a need to make sure that the governors do not slide back to the old default option—the Friday—and some records need to be kept.
That having been said, what unites my noble friend and me is far greater than what divides us. As he said, he and I are concerned about introducing a policy change at very little cost, and possibly no cost, as a way—perhaps only a modest one—of reducing the likelihood of prisoners reoffending. I very much look forward to hearing my noble friend the Minister’s reply.

Baroness Lister of Burtersett: I support Amendment 211, to which I have added my name. The case has been made very powerfully by the noble Lord, Lord Hodgson of Astley Abbotts. I am also supportive of the aims of Amendment 210, although that goes further by leaving less room for discretion—that may be a good thing, given the Scottish experience, which I will mention later—and I suspect would find even less favour with the Government.
I am struck by the strength of the case for change, from both the short-term perspective of the prisoner being released and the longer-term perspective of the likely impact on reoffending that we have heard about. Just last week, the Justice Secretary emphasised the importance of employment in reducing reoffending, and these amendments would help to support the initiatives to which he referred.
I ask the Minister to put himself in the shoes of a prisoner about to be released. Even the most organised of us would quail at the number of essential things they have to sort out: accommodation, health services, benefits and employment support. As an aside—although I know that the Minister will not be able to answer this question, I would be grateful if he could write to me—why does the law not permit prisoners to initiate their claim for universal credit before the actual release? Having a first UC payment available on the day of release would at least remove one obstacle, helping to create a much more effective resettlement process and, potentially, cut the rate of reoffending.
Returning to the matter at hand, I can only begin to imagine the mixture of relief and anxiety that prisoners must feel on release. To face this on a Friday, when  many key services will be closing for the weekend, must be experienced as a set of totally unnecessary hurdles to be negotiated. Is it surprising that, according to Nacro, whose briefing I am grateful for, the inability to surmount those hurdles can lead to reoffending and/or turning to the more accessible comforts of drugs or drink. In the words of one prison-leaver, “If you’re released on a Friday and there are issues then they are not likely to be resolved until the following Monday, leaving the weekend to panic/stew/worry which could easily lead to reoffending.” I would panic/stew/worry if I were in that situation, I really would.
It seemed to me that this was a no-brainer, and thus it was with some surprise and disappointment that I read the negative response from the Minister in Committee in the Commons to the same amendment as Amendment 211. It felt as though he was clutching at straws in his rejection of the case made, and contradictory straws at that. On the one hand, he suggested that the change proposed would create pressure on the other days of the week, ignoring the fact that this amendment is purely discretionary and that, apparently, a third of releases currently take place on Fridays. Surely, if it were acted upon, the amendment would help to even out releases over the course of the week.
On the other hand, much was made of the fact that, in Scotland, prison governors have rarely used this discretionary power, which they have. Can the Minister tell us whether we have any information as to why that is the case? It would be helpful to know so that appropriate steps can be taken. Whatever the reason, however, it is surely not a good cause for refusing to follow suit in England and Wales. Even if it helps only a few prisoners on release, surely helping even a small number is better than helping none at all. It would be good if the impact of the change could be monitored so that, if it is shown to have a beneficial effect, it might encourage governors to use the power more.
In the Commons, the Minister acknowledged that there are challenges in making sure that offenders leaving prison are given access to the services they need so that they can get their lives back on track, but he then said that the Government
“would prefer to focus our efforts on making sure that those services are available on Friday.”—[Official Report, Commons, 22/6/21; col. 706.]
He then spoke rather vaguely about investment in reducing crime and tackling the drivers of reoffending as well as pilot programmes in five probation areas. But what exactly are the Government doing to ensure that services are available on a Friday, and functioning in a way that ensures that an ex-prisoner’s needs are sorted out before the weekend? Why do Ministers think they know better than probation officers and others on the front line who have supported Nacro on this?
I do not understand why the Government are so averse to this very modest change. I had hoped that this was an amendment they might accept in some form and that, while the wording may not be quite right, the essence of the amendments put together would be acceptable. I still hope that the Minister might be more open-minded to it than was his counterpart in the Commons.

Baroness Jones of Moulsecoomb: My Lords, both these amendments are really sensible. I very much hope that the proposers can work together before Report so that we have something quite powerful that we can all back and take forward. I realise that it is not easy for Ministers in your Lordships’ House. They hear all the expertise and sensible arguments, yet they have to go back to their Ministry and try to convey these arguments at the same time as being totally crushed and told, “Go back and just defend the status quo.” Still, I believe that the noble Lord, Lord Wolfson, could be quite tough with the Ministry about this and I very much hope that he will be.
When you hear about what happens to prisoners—a third being released on a Friday when, of course, housing benefits, healthcare, banking and all essential services are basically closed—you cannot believe that anybody would do it. It just does not make sense for those people who are being released. They have paid their debt to society; now we have to support them to make sure that they do not go back inside where they cost society a huge amount of money and contribute very little.
The other issue, of course, is that many people in prisons are miles from home and cannot easily travel home on a Friday; they may not have the money, the trains may not be running over the weekend, and so on. It seems that the Government and prisons are punishing ex-prisoners more and more. Can the Minister tell us why Friday is so popular a day to be mean to released prisoners? Why not give them the best start to reintegration?

Lord Ramsbotham: My Lords, I rise to support Amendments 210 and 211, and congratulate the noble Earl, Lord Attlee, and the noble Lord, Lord Hodgson, on their introductions.
I am at one with the noble Baroness, Lady Lister, on this issue. When he was Prisons Minister, Rory Stewart once attended a conference on the issue, organised by Nacro, which as the noble Lord, Lord Hodgson, said, has led on this for a long time. Some brave prison governors risk censure by using release on temporary licence to avoid release on Fridays. I have never understood why the Department for Work and Pensions does not make staff from jobcentres go into prisons to work out a prisoner’s entitlement to benefits, including universal credit, so that they do not leave prison with a discharge grant, but with the first payment of whatever benefit they are entitled to. In that way, they can pick up the next benefit the next week rather than having to wait six weeks following release before they can apply.
In many ways, the Government are setting people up to fail by, first, releasing prisoners on Fridays and, secondly, insisting on a six-week delay; I defy anyone to exist all that time even on an increased discharge grant.

Baroness Chakrabarti: My Lords, I am sure that the fabulous quintet of noble Lords led by the noble Earl, Lord Attlee, the noble Lord, Lord Hodgson of Astley Abbotts, and so on, will be delighted by that endorsement from the noble Lord, Lord Ramsbotham, as there has never been a clearer or braver voice for penal reform in my adult lifetime.
I briefly add my own three cheers for these two amendments and for everything that goes with them. They have highlighted the piteous state of provision for prisoners from the moment of their release, quite often into destitution, and a total deficit of support. I hope that that will be taken on board, as well as the precise amendment, by the Minister in his reply. Notwithstanding comments made during the last group that law is not everything and practice is important, sometimes law is very important in itself, particularly release dates because they have to be enshrined in law. So, while there is no doubt that other provision, referred to by my noble friend Lady Lister of Burtersett and others, needs to be made, this matter requires urgent legislative attention. I think I agree with the noble Earl that, on reflection, something more like Amendment 211 is probably better.
To deal with the concern of my noble friend Lady Lister about Scotland would not take much, would it? Off the top of my head—forgive me, parliamentary counsel will do better—the “may” in Amendment 211 becomes “must” and the words
“at the discretion of the governor of the prison”
are moved to the gap between “on a day” and
“within the previous five working days”.
In other words, the discretionary part is which day within the previous five days. However, there is no discretion; there is a mandatory requirement that the prisoner must not be discharged on a Friday or a weekend. Something of that kind would be delivered very easily—and it really must be delivered. I hope that there will be none of the antics that we heard described in the other place to justify the totally illogical, impractical and unjustifiable status quo.

Lord Paddick: My Lords, I rise to speak on behalf of my noble friend Lady Bakewell of Hardington Mandeville, who is unfortunately unwell and unable to be in her place. She wanted to speak to Amendment 211 in the name of the noble Lords, Lord Hodgson of Astley Abbotts and Lord Bird, and the noble Baroness, Lady Lister of Burtersett, to which she added her name. She would have spoken about her personal experience, so I shall just read the words that she had hoped to say had she been here.
The routine releasing of prisoners on a Friday, especially before a bank holiday, can cause both services and the prisoners themselves significant problems. Finding accommodation on a Friday afternoon can be extremely difficult. Those who have managed to get clean of substance abuse while in prison find themselves desperate and start using, begin criminal activity again or, in some cases, both. For 10 years, my noble friend was a councillor on South Somerset District Council where there were marvellous officers who worked tirelessly to try to ensure that no one was left with nowhere to stay. The noble Earl, Lord Attlee, made a powerful case for the amendment and the noble Lord, Lord Hodgson of Astley Abbotts, similarly made the case for not releasing prisoners on Fridays or bank holidays. This is a matter that my noble friend feels very strongly about, so I will share two cases sent to her by the officers of South Somerset.
First, prisoner A was released on a Friday from Guys Marsh prison near Shaftesbury. He was given a rail warrant and got on a train to Yeovil. He contacted  his family, realised he did not have accommodation to return to and went to see his offender manager at the probation office, who contacted the housing team. By this time, it was 3 pm and they had very little options available for him at that time of day. It was too late for them to find suitable accommodation and although they managed to get him into a hostel in Yeovil, that was not the best place for him, He had left prison clean of drugs and had to stay in a hostel with very easy access to illegal substances. Unfortunately, he used again, the accommodation broke down, he reoffended and was recalled to prison.
Case two was prisoner B, who was released from prison in Bristol on a Friday and got a train back to Yeovil. He then got a bus to Chard, some 17 miles away, to collect his possessions from his old tenancy. He then returned to Yeovil, by which time the offices had closed. He spent the weekend rough sleeping before he could contact the district council again. South Somerset District Council is fortunate to have secured funding to employ a prison release worker who tries to contact prisoners before they are released so they can plan ahead and help them. However, when people are on short sentences, the prisons rarely have time to work with the prisoners, so they get released without the council being informed. My noble friend Lord German has tabled amendments on those serving short sentences.
Other prisoners think they are okay and have homes to return to. These often do not materialise and by the time they realise they are homeless, it is 5 pm on a Friday. Sadly, one of the people in these case studies died over the weekend of 16 and 17 October aged only 45. He was quite a prolific offender and spent a lot of his time in prison. He had been in care from the age of two and did not have the best start in life. The council tried to help him on a number of occasions and sometimes succeeded, but not always. These are just some examples of what happens when prisoners are released on Fridays. This could be avoided by flexibility being used both in the courts and in the prisons. I hope the Minister will agree that this is a very sensible, non-controversial amendment which could prevent reoffending for the want of a roof over the heads of prisoners who have finished their sentences. I fully support Amendment 211 and look forward to the Minister’s response.

Lord German: My Lords, I will add a few words to give some examples of how this actually affects real people. The third sector, the charities in our society, have been very good at helping and supporting people. Given that we now know that a third of prisoners are released on a Friday, one would think that the charity on hand to meet them at the gate and help them through a very difficult period on a Friday would be helped by the prison authorities explaining when the prisoner was going to be released. After all, if you are sitting in a car, possibly round the corner from the prison, waiting for the gate to open and the prisoner to come out, you need to know that you are not going to be waiting there from 8 am or 10 am until 5 pm or 6 pm. Yet, in fact, that is the story I have heard from one charity that helps people in this matter.
The second example was very concerning. A food bank based in Hereford told me that these prisoners—the third who are released without anywhere to live—were  given tents and sleeping bags, directed to a farmer’s field and given the address of the food bank. That is the sort of emergency you then place these people in. These are people who have done their sentence but who face no fixed abode, nowhere to live and certainly no money.
The third thing that worries me is how people get their benefit if you now require a bank account. As I understand it—perhaps the Minister will correct me—setting up a bank account while you are in prison is not a possibility; in other words, even if you were to get your benefit paid at the time you left, you would have to have a bank account to pay it into and to provide the necessary ID as well, all of which of course becomes less popular and less possible on a Friday.
These amendments do not seem to be rocket science. They are actually very practical and since that group of one-third of prisoners who are let out on a Friday are the group most likely to reoffend if they cannot find anywhere, there is a societal impact. We all can benefit by giving these people the right helping hand in their very first window of opportunity in real community life.

Bishop of Ely: My Lords, I was not intending to speak to these amendments but, having been involved in prisoner resettlement in the past, I feel it is important to say that Friday release has a particular impact on younger women prisoners if their only option is a bail hostel. Women, as we know, are much more likely to find their family life disrupted than men during the often short sentences that they suffer. The noble Lord mentioned somebody being in a car round the corner. That very patient person who was managing that young woman as a sex worker before she went into prison will spend the whole day waiting to snatch her away and take her back to the life she was in before. When the alternative options are so dreadful for such young women, it is not surprising that there are the statistics on them falling back into the kind of oppression they knew before. Our whole approach to resettlement would be advanced hugely by these amendments being accepted by the Government.

Lord Falconer of Thoroton: An incredibly powerful case has been made. We support it and I am grateful to the noble Earl, Lord Attlee, the noble Lord, Lord Hodgson, my noble friend Lady Lister and, in her absence, the noble Baroness, Lady Bakewell, for tabling these amendments. I completely adopt what my noble friend Lady Lister said about the total inadequacy of the reasons given in the Commons for not supporting this. The first was that it would mean there would be bunching of releases on other days, but if a third are on Friday already that seems a completely hopeless point. Secondly and separately, it was said that it is not used very much in Scotland; if it is not used very much, then the Government would not have much to worry about. Why not do it?

Lord Wolfson of Tredegar: My Lords, I am grateful for the various speeches which have been given on these amendments, which, as we have heard,  seek in different ways to avoid the release of prisoners on a Friday. Obviously, I understand the distinction between the two, although it is fair to say that they are both aimed at substantially the same point.
The current position is this. Section 23 of the Criminal Justice Act 1961 provides that prisoners whose release dates fall on a weekend or bank holiday should be released on the working day which immediately precedes that weekend or bank holiday. In most cases, that is a Friday, which is why, to make the obvious point, we have “bunching” on Fridays. If one would expect release dates generally to fall over the week, given the law of large numbers, you have Saturday and Sunday pushed back to Friday, plus the occasional bank holiday. We are very aware of and alive to the challenges that this can create in accessing support and services in the community. We are taking steps to mitigate those difficulties; I will turn to those in a moment.
First, however, the amendments seek to reduce releases on a Friday or non-working weekday by either preventing the court setting a sentence length that is likely to lead to release on those days, or by providing greater flexibility for prison governors to avoid Friday releases by giving the discretion to release earlier in the week. I heard what the noble Baroness, Lady Lister, said about the responses given in the other place: that the Minister there was clutching at straws. I think the noble and learned Lord, Lord Falconer of Thoroton, has set me the challenge to be better than “completely hopeless”. That is a bar I hope to surmount.
I assure the Committee that I am open-minded and have listened very carefully to the debate. While I am sympathetic to the need to tackle this issue, I do not agree that it is necessary to legislate in the way proposed by the amendments, and I will explain why. To do so would either undermine existing sentencing principles by preventing the court passing a sentence which is likely to result in release on a Friday, or it would allow prisoners to be released even earlier from their sentence. Legislation provides that prisoners are released on the working day closest to their statutory release date and we do not believe it is necessary to go further than that.
I will deal with sentencing first. It is not realistic or achievable to require a sentencing court to try to work out on which day of the week an offender would fall to be released and adjust the sentence accordingly to avoid that being a Friday, weekend or bank holiday. I would have thought that that is self-evident. It is obvious because a prisoner’s release date is something of a complex calculation. It is carried out by prison staff and depends on a number of different factors that a sentencing court would not necessarily be able to take into account. These could include: any other concurrent or consecutive sentences the offender might already be serving; the correct amount of remand time to apply on all relevant sentences being served; and any added days imposed for bad behaviour while serving the sentence.

Baroness Jones of Moulsecoomb: I thank the Minister for giving way; that is very kind. Is he aware of how daft that sounds? We have just explained that the punishing of ex-prisoners is not acceptable. The bunching should not occur; find a way around it.

Lord Wolfson of Tredegar: I am trying to deal with the amendments in what I hope is a logical way. At the moment, I am dealing with the amendment which provides that the sentencing court should have regard to the day of release. I am trying to explain—cogently, I hope, and with great respect—why that is not a sensible or workable proposition.
I have dealt with longer sentences; let me now deal with shorter sentences. It might be said that with a shorter sentence the court could identify the release date. I accept that it would be easier for the court to identify the day of the week on which the release would fall if the sentence is very short—let us say two, three or four weeks—and if no other sentences are involved, but the problem there is that if you bring that release date even earlier, percentage wise, that is a significant additional reduction from the sentence. I therefore suggest that these amendments are not the answer—

Baroness Lister of Burtersett: The Minister may be about to come to the point I was going to make. The provisions in Amendment 211 are discretionary. If it is possible in Scotland, why is it not possible here?

Lord Falconer of Thoroton: The Minister said that he was dealing with the amendments logically. He dealt with only Amendment 210 and did not deal with Amendment 211.

Lord Wolfson of Tredegar: I am coming to the point about discretion in Scotland. I will respond to that in a moment, if I may. First, I wanted to identify how we think we can best deal with the problems which bunching can give rise to. I absolutely agree that reducing further crime by those who have been released is critical. We have to cut reoffending and we know that a lack of suitable accommodation or sustainable employment, as well as substance misuse, can lead offenders to return to crime. Therefore, we need to ensure that people leaving prison on all days of the week, Fridays included, have access to services.
I will briefly identify four important things in this regard. In January this year, we announced a £50 million investment to reduce crime and tackle key drivers of reoffending. In July, we launched temporary accommodation for prison leavers at risk of homelessness in five probation regions, because we know that having access to transitional accommodation is very important. We have invested a further £20 million in the Prison Leavers Project, which tests new ways to reduce reoffending by addressing the challenges people face when they leave prison.

Lord Hodgson of Astley Abbotts: I am of course impressed by the list of initiatives being taken by the Government and the roll call of money being spent, but it has not answered the question. We are not asking to spend money; all we are asking for is an administrative change. It may be an administrative change whereby the flexibility has to reflect the length of the sentence. We surely cannot be in a position where we cannot give prison governors a day or two of flexibility to enable them to set up a system of the sort that has been described all around the House. It must be possible.

Lord Wolfson of Tredegar: I am not suggesting it is not possible; I am asking whether it is the best way to deal with the problem. I hear “of course it is”, but I suggest that it is not. Take the example of Scotland, where they have a discretionary power. That is a model of discretion regarding early release, under the Prisoners (Control of Release) (Scotland) Act 2015. Scottish Ministers have the discretion to bring forward the release dates of people in custody by no more than two days for the purposes of benefiting a prisoner’s reintegration into the community.
A freedom of information application was made on 30 March this year to the Scottish Prison Service which showed that only 20 prisoners have been granted discretionary early release under that Act in the five years since its implementation. We are not aware of any problems with implementation. I will ask officials in my department to consult with our colleagues in the Scottish Government to explore that issue further. If I am provided with any useful relevant information as a result, I will write to the noble Baroness to provide further information on that discretionary policy. We think that the best way to deal with this matter is to put money and services in place to ensure that prisoners, whatever day they are released on, have access to the services they need.
I heard the point made by the noble Baroness, Lady Lister, about universal credit. She very fairly gave me the opportunity to reply in writing, because that matter is substantially outside my department. I also heard what the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Chakrabarti, said about that issue; I will therefore respond in writing. At the same time, I will try to pick up the point made by the noble Lord, Lord German, on bank account opening, in so far as it is relevant to the universal credit point.
We are certainly not setting people up to fail; we sincerely want them to succeed and not reoffend.

Baroness Lister of Burtersett: The Minister has made a slightly better fist of it than the Government did in the Commons, but in a sense he is clutching at the same straws—his presentation is just a bit more articulate than they were in the Commons. Does he not accept that it is better, even if it is just a few people, to help a few rather than none? Is he going to be able to say how he is going to keep services open over the weekend, because that is the issue? We have heard terrible examples of people being put in fields and turning to drugs and so on because the services are simply not there. This wonderful list of all these things the Government are putting money into is great, but I have not heard anything that would explain how the Government will ensure that services are there on a Friday evening, Saturday, Sunday and bank holidays.
I am afraid the Minister has not convinced me and, given the shaking of the head behind him, I do not think he has convinced the mover of the amendment, so I really ask him to look again at this. Although, unlike the first group of amendments, we may not have taken two hours on this group, there is absolute unanimity throughout the House that we can do something practical and it will not cost money. I am sorry, I am making a speech, which I should not be.

Lord Wolfson of Tredegar: I do not want to repeat what I have said. My focus is on ensuring that people have access to services on whatever day they are released, whether it is a Tuesday, a Friday or any other day. It is certainly not the case that, if we just moved people’s release day from a Friday to a Tuesday or a Monday, all our problems would go away. We must have those services in place, and that is what I want to focus on. I have said that I will look in more detail at the Scottish discretionary system, if I can call it that, and I will write to the noble Baroness. I do not want to repeat what I have already said, but I hope that I have addressed the substance of her point. I suspect that the noble Lords who spoke to the amendment have indirectly told me the answer before I sit down, but I none the less invite my noble friend to withdraw his amendment.

Earl Attlee: My Lords, I confess that I am little disappointed by my noble friend’s reply. I hope that he feels able to have a meeting with me to discuss this in a bit more detail.
I am neutral on the solution. I tabled my Amendment 210 before my noble friend’s amendment was tabled, which is why mine came up first. The Minister identified a fatal flaw in my amendment, which is that a prisoner could acquire extra days to be served, so it is impossible for judges to determine the day of release for that reason alone.
My noble friend referred to Scotland. The fact that Scotland does not use its power correctly is not a reason why we should not take that power. I am aware of the universal credit problems. That is a complex issue for experts such as the noble Baroness, Lady Lister, not me. The Minister suggested why prisoners often have to be released on a Friday. Surely it is because, when the courts consider a case, they tend to sentence later in the week.
I was keeping my fingers crossed for this amendment but I have been a bit disappointed. However, my noble friend cannot deny that the problem exists. I suspect—indeed, I am sure—that he and I will return to this issue with a perfectly drafted amendment at a later stage, and with even more vigour. In the meantime, I beg leave to withdraw the amendment.
Amendment 210 withdrawn.
Amendment 211 not moved.

Amendment 212

Lord Ponsonby of Shulbrede: Moved by Lord Ponsonby of Shulbrede
212: After Clause 124, insert the following new Clause—“Short custodial sentences(1) The Sentencing Code is amended as follows.(2) In section 230 (threshold for imposing discretionary custodial sentence), after subsection (2) insert—“(2A) If the court finds that the offence is so serious that neither a fine alone or a community sentence can be justified for the offence, it must state its reasons for being satisfied that the offence is so serious (having regard to the considerations in subsection (2B)), and, in particular, why a community order with appropriate requirements could not be justified.  (2B) In this determination, the court must take account of the following principles—(a) passing the custody threshold does not mean that a custodial sentence should be deemed inevitable; (b) custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime; (c) sentences should not necessarily escalate from one community order range to the next at each sentencing occasion;(d) the decision as to the appropriate range of community order should be based upon the seriousness of the new offence(s);(e) section 65 (a relevant previous conviction to be treated as an aggravating factor) should not be interpreted so as to meet the custody threshold in respect of the sentence for one or more offences that would not themselves justify custody; and(f) where the offender being sentenced is a primary carer for a child, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.”(3) After section 230, insert—“230A Impact of custodial sentence on child or unborn child(1) This section applies where a court is considering imposing a custodial sentence on—(a) a primary carer for a child, or(b) a pregnant woman.(2) The sentencing court must—(a) consider the impact of a custodial sentence on the child or unborn child, and(b) presume (subject to victim impact and any other sentencing considerations) that a non-custodial sentence is in the best interests of the child or unborn child.(3) In this section—(a) “child” means a person under the age of 18, and(b) “primary carer” means a person who has primary or substantial care responsibilities for a child.””

Lord Ponsonby of Shulbrede: My Lords, the purpose of Amendment 212 is to encourage sentencers to used community-based sentences rather than short prison sentences. It proposes strengthening the custody threshold as a principled starting point for reducing the current use of custody for lower-level sentences.
I favour this amendment over the potentially bolder Amendment 213 in the name of my noble friends, which seeks a presumption against a ban on short prison sentences. The danger of Amendment 213 is that if it restricts access to short prison sentences, in the current climate it could result in up-tariffing, which would not be a desirable result for the length of prison sentences.
As the law is currently drafted, imprisonment is reserved for serious offences. It is already established in statutory terms that an imprisonable sentence should be given only if there is no alternative. However, despite that, in practice people routinely continue to be imprisoned for low-level lawbreaking, fuelling an expensive merry-go-round of multiple short prison sentences.
The amendment proposed builds on principles already accepted in the sentencing guidelines. It enshrines these into legislation to better clarify the current statutory custodial threshold. Specifically, it intends to better  ensure that custodial sentences are appropriately reserved for serious offences by better clarifying the assessments that are required to be made. The impact of imprisonment on dependent children should be considered in the sentencing of primary carers. This would limit the relevance of previous convictions in determining custodial sentences.
Persistence is a key driver of the current use of short-term custody and needs to be tackled head on. This amendment emphasises that short periods in custody should not be seen as an inevitable response to a person with a history of relatively minor offending.
The intention of this amendment is to shape the approach of judges and magistrates when considering a custodial sentence in a substantial proportion of cases which currently result in short prison sentences. However, it is important to emphasise that nothing in the proposed provisions would prevent a court from imposing custodial sentences of any length, including short custodial sentences.
In conclusion, I sit as a magistrate in central London. I put short custodial sentences in place, the vast majority of which are for people who have previously tried community orders and have either reoffended or have breached them on multiple occasions. It is very rare for a magistrate to give a short custodial sentence to somebody who has not previously been on a community order. Nevertheless, I think there is a genuine issue here—primarily the strength of the community orders which are available to courts. When the Minister responds to this debate, perhaps he will say something about the strengths and current revamping of the probation service. When sentencing judges or magistrates make short custodial sentences, the confidence that they have in community orders is an important consideration. I beg to move.

Lord Dubs: My Lords, I shall speak to Amendment 213. My noble friend Lord Ponsonby was somewhat critical of it. I agree with what he is seeking to achieve in Amendment 212. Amendment 213 goes a little further and is a little more precise. If I may say so, I think it is a better amendment.
To clarify, this is not a blanket ban on short sentences; it is a presumption against short sentences. Previous Governments have supported this idea. The evidence is that short sentences do not lessen offending. They are mainly concerned with non-violent offences. They do not provide meaningful rehabilitation. They can have a disruptive effect on family life and relationships.
The statistics are quite awesome. According to data from the Ministry of Justice, between January 2020 and March 2021, 20,000 people went to prison to serve a sentence of six months or less—44% of the prison population. This was even more so for women during the same period. Prior to the pandemic, the figures were even starker.
As I have said, the majority of people serving sentences of six months or less are in prison for non-violent offences, such a theft and drug offences. These offences are often linked to underlying issues such as poverty, addiction, homelessness and poor mental health. We know that these people really should not be in prison at all. Prison does not help them. We also know that short sentences have proven to be  less effective than community sentences in reducing offending. Community sentences include interventions such as drug, alcohol and mental health treatment. They do more to address the root causes of offending.
Short sentences disrupt family life and ties; they damage housing, employment and treatment programmes. They do not provide any meaningful rehabilitation. These sentences contribute to volatility shown in prison.
Short prison sentences have a harmful effect on women in particular, hampering relationships with their families and children. Over half of women in prison report being victims of domestic violence, which often contributes to the offence that led to the prison sentence. I have had some help from a great organisation called Revolving Doors, and I have a quotation from one of its members:
“Although I was in prison for a short time I felt traumatised by the whole experience. In fact, sending me to prison was just a waste of time and money. I was released with no explanation and no support. I found myself back in the violent relationship which exacerbated my addiction which led to further arrests and trauma.”
Another argument for a presumption against short sentences is the cost. Of course, that should not be the main thing; the main thing should be protecting society, penalising people who should be penalised and helping to reduce reoffending. However, cost does come into it. The annual cost per prison place in 2020 was £44,640, compared with £4,305 for a community order. It is quite a dramatic difference.
The public, according to surveys, understand why there should be a presumption against short prison sentences. Probably, there are people who say, “Send them in and keep them in longer—six months is too short”, but the public are quite sensible and understand what is going on. I can only refer to previous Ministers, David Gauke and Rory Stewart, who both said it was necessary to introduce the presumption against short sentences. I think we can manage to do that.
The amendment of my noble friend Lord Ponsonby, as I said, goes in the right direction, but it is not quite strong enough. This is such a simple measure—so simple that it is hardly worth spending time debating it. I am sure the Minister will accept it.

Lord Pannick: The noble Lord, Lord Dubs, asked: these amendments are so simple, why waste time debating them? Well, of course, the law already proceeds on the basis that these amendments propose. Section 230 of the Sentencing Code already says that the court must not pass a custodial sentence unless it is of the opinion that the offence was so serious that a fine or community sentence is not sufficient for the offence. Any court that passed a custodial sentence without stating the reasons for doing so would find that the sentence was overturned in the Court of Appeal. Any sentence in court that fails to consider and address the impact of a custodial sentence on a child or unborn child would not be upheld on appeal. So I entirely support these amendments, but I think we should be realistic about the current state of law.

Lord Beith: My Lords, I do not intend to fall into a bit of disagreement with the noble Lord, Lord Pannick, with whom I worked happily in the Constitution Committee, but the present state of the law has not really solved the problem, has it? Very  large numbers of very short sentences are given, and the consequence is that prison places are used, costs ensue, and the least effective way of dealing with individuals seems to be the one that is chosen. If there is some way in which we can strengthen the presumption the sentencing guidelines already carry, that would be good. The amendment of the noble Lord, Lord Ponsonby, is a complicated alternative way of doing it, but it does appear that something needs to be done.
The argument often used for short sentences is that courts have a problem in dealing with persistent repeat offenders and persistent repeat breaches of conditions of community sentences. There is a popular myth that if offenders do not respond to other measures, a taste of prison will soon put them right. There is absolutely no evidence to support this principle. Indeed, all the evidence points the other way.
I used to chair the Justice Committee in the House of Commons, and that has had a continuing interest in this problem. Its report in 2018 recommended that the Government introduce a presumption against short prison sentences. The Government welcomed this and said they were exploring options. In a follow-up report, the Justice Committee noted the Government’s stated intentions to move away from short custodial sentences.
In 2019 the Ministry of Justice published an analysis which included the assertion that
“sentencing offenders to short term custody with supervision on release was associated with higher proven reoffending than if they had instead received community orders and/or suspended sentence orders”.
The relevance of a suspended sentence among the range of possibilities should be remembered. When David Gauke, who has been mentioned, was Lord Chancellor, he seemed quite strongly to support this direction of policy and referred to the large reduction in prison places which could be achieved by it. Robert Buckland was more reluctant. When he was in front of the Justice Committee, he referred to his experience as a recorder, which told him that there were times when short prison sentences should be available to judges and magistrates for repeat offenders who failed to comply with community orders.
Of course, the noble Lord, Lord Dubs, and I are not arguing that a court should be wholly denied the use of a prison sentence if that is a realistic alternative which will satisfactorily deal with the particular case. We are simply trying to change the general drift of policy. In Scotland the presumption exists already, and it could be strengthened in some ways in England and Wales. We have to do something—we have to do a number of things —to deal with the burgeoning prison population and stop putting into prison people whose propensity to reoffend is not being reduced by putting them in prison again. The circumstances I have referred to do not seem to justify the extensive use of short sentences that we see now.

Bishop of Bristol: My Lords, I speak on behalf of my right reverend colleague the Bishop of Gloucester, who is unable to be in her place. She declares an interest as Bishop to Her Majesty’s Prisons in England and Wales. These are her words.
“I am delighted to add my name in support of Amendment 213, tabled by the noble Lord, Lord Dubs. I also have great sympathy for Amendment 212, tabled by the noble Lord, Lord Ponsonby. Both aim to remedy some of the justice system’s current overemphasis on prison sentences without sufficient regard for whether prison is an effective remedy for the offender or a guarantee to the safety and benefit of the community. By and large, short sentences have proven ineffective on both counts.
Sentences of six months or less are easily long enough to be disruptive but not nearly long enough to be effective in any rehabilitative programme. Short sentences are bad news for families, as we have discussed previously in Committee, in terms of the impact of imprisonment on primary carers and their families. Short sentences damage employment prospects, mental health and more. They are therefore disproportionately punitive, not least when the majority are for non-violent offences. They are also ineffective. Close to half of all those leaving custody go on to reoffend within a year of their release. That increases to almost two-thirds of those sentenced to less than 12 months in custody. The social and economic cost of this level of reoffending has been estimated at £18 billion per annum by the Ministry of Justice’s own analysis, while the costs to the communities and victims who suffer the effects of crime are impossible to estimate.
We know that community sentences are far more effective at reducing reoffending than short prison sentences and cost far less than a prison place. How have we reached a place in the UK in which imprisonment is so overused and seen as a solution to all criminal justice problems when the evidence and data simply do not support this? The UK has some of the highest imprisonment rates in western Europe. England and Wales have a prison population rate of 133 per 100,000 inhabitants—that is 27 per 100,000 above the median for EU member states. We are even worse against the bigger European states. For example, Germany has an imprisonment rate of just 69 per 100,000. That is roughly half our rate. Perhaps not coincidentally, Germany has operated a presumption against short sentences since 1969. Overall, our prison population has increased by over 80% in 30 years, which seems to suggest a trend across a series of Governments of trying the same thing in the hope of achieving different results.
It has been estimated by the Prison Reform Trust that two-thirds of prisoners are in prison for a non-violent offence. These offences are often theft or drug-related and linked to poverty, addiction and trauma, as we have heard, yet we seem to think it better to lock someone up rather than focus time and money on addressing the root causes. For women the rate is higher still: an astonishing 80%. Almost half are on short sentences of six months or less—the majority of all custodial sentences given to women.
As I mentioned earlier in Committee, I was fortunate enough to host an event here in Parliament, and I was delighted to welcome the Minister, the noble Lord, Lord Wolfson. I hope he will not mind if I remind him of some of the testimony we heard together. Niki Gould of the Nelson Trust, in which I declare an interest as president, told us that, ‘We fundamentally know  that prison exacerbates women’s issues and leads to intergenerational cycles of trauma, abuse and reoffending.’ We heard that diverting 500 women through programmes such as the Nelson Trust not only is more effective at turning their lives around but comes at the equivalent cost of sending just five women to prison, and we heard, with some incredulity, from experts that 500 new prison places for more women serving more short sentences could be a better solution than long-term investment in women’s centres.
This is one of those happy occasions when the moral case happens to align with making excellent economic sense. An effective justice system that is relational, responsible and restorative would cost less in the long term. Finding a way to move beyond short sentences would better support families and children made vulnerable by family breakdown. If implemented as part of a broader package of support for problem-solving courts, women’s centres, and good and effective community sentences, it would lead to better results in terms of reoffending and rehabilitation, and, therefore, safer communities. It would come at a fraction of the price of maintaining the current revolving door of short sentences.
As we heard, in 2019 it seemed like we might have been approaching a breakthrough when the then Lord Chancellor went on the record in favour of a presumption against short sentences. If Ministers do not accept these amendments, I hope we will hear what they see as the future of short sentences and how they can be reduced.”

Earl Attlee: My Lords, I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for moving his amendment, and to the noble Lords, Lord Dubs and Lord Beith, for speaking to theirs. Those noble Lords have far more experience in these matters than me, but I have something to say that might assist the Committee.
In September 2017, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, initiated a debate on prison numbers. That stimulated me to take a very close look at our penal system. It is fair to say that the increase in the prison population is caused by sentence inflation and might have little to do with short sentences.
I believe that the effectiveness of a prison sentence is inversely proportional to the appropriate length of the sentence. Thus, very long sentences to protect the public are effective in terms of incapacitation. On the other hand, very short sentences are extremely poor at rehabilitation and reducing reoffending.
The reason short sentences are so ineffective is surely that the current prison system and its regime do so little to address offenders’ weaknesses. The chief inspector’s reports have been telling us this for years. By definition, these are minor offenders and very often prolific ones. They leave prison after a short sentence with the same weaknesses in terms of education, training and conduct they arrived with. Therefore, there should be no surprise that we have a reoffending rate of about 65% within 12 months of release. The Committee should recognise that these figures are flattered by those who were never going to reoffend for one reason or another.
I am sure that the Committee will understand that most prolific minor offenders stop offending by the age of 26 or possibly 30. Moreover, this is despite a terrible start in life, the fact that rarely has anybody ever loved them, and the lack of a positive male role model. Therefore, these offenders cannot be hopeless, something can be done with them; some improvement in education, training and conduct must be achievable. The difficulty is that these improvements will not be secured through the current prison system.
Amendment 241, which we will debate later, seeks to create a system to address the problem of the ineffectiveness of short sentences. I do not have a view on which is the superior amendment of the two that we are debating—both are commendable—but I take on board the points made by the noble Lord, Lord Pannick. I slightly worry about the inflation risk with Amendment 213, and I suspect that the noble Lord, Lord Beith, acknowledges that. However, I feel very strongly that if the state does decide to take a minor offender into custody, it must be certain that it is going to improve matters and do no harm.

Lord Bradley: I rise to speak briefly to this group of amendments, which I strongly support. I declare my interest again in the register as a trustee and vice-chair of the Prison Reform Trust. We have already debated Amendments 215 to 218, principally regarding primary carers, which I believe are closely related to today’s amendments on short sentences, so I will not delay the Committee by repeating the arguments.
However, by way of further background, it should be noted that the prison population, as we have heard, has risen by 74% in the last 30 years and is currently projected to rise by a further 20,000 by 2026, with millions being spent on providing additional prison places. Yet there appears to be no link between the prison population and levels of crime, according to the National Audit Office.
More than 40,000 people were sent to prison to serve a sentence in 2020, the majority of whom had committed a non-violent offence, and almost half were sentenced to serve six months or less. Crucially, as many organisations have pointed out, including Revolving Doors and Women in Prison, short prison sentences are proven to be less effective than community sentences at reducing reoffending.
Of course, short-term prison sentences have a particularly harmful effect on women and primary carers, as we have debated. It is important to note that in a Parliamentary Written Answer on 30 June 2021, more than 500 women were in prison on a sentence of less than two years. We have already heard from my noble friend Lord Dubs the economic case against short sentences. In addition, the National Audit Office estimated that the cost of looking after short-sentence prisoners, not including education and healthcare, was £286 million a year.
It is also interesting to note, as we have heard tonight, public attitudes to prison sentences, particularly short sentences. I know that the Government take an interest in this. In a survey conducted in 2018 by Crest Advisory, fewer than one in 10 people said that having more people in prison was the most effective way to  deal with crime. Early intervention, better parenting, discipline in schools and better rehabilitation were all cited as more effective responses.
Similarly, Revolving Doors undertook a survey which found that 80% of the public think that the theft of daily essentials such as food, sanitary products and nappies does not warrant a prison sentence, and that 74% of the public think that people with drug and alcohol addictions should receive treatment programmes not prison sentences.
It is clear to me that robust, effective community sentences are preferable to a short, disruptive and cost-heavy prison sentence. Therefore, when considering sentences there should be a presumption against short prison sentences, as laid out in the amendment. To reinforce this position, we can look at the experience in Scotland, where a presumption against prison sentences of 12 months or less was introduced in July 2019 following its successful introduction of three months or less in 2011, leading to many more community sentences and a consequential reduction in short sentences. Community Justice Scotland stated that evidence shows that short-term prison sentences are not effective in meeting a person’s needs and reducing their likelihood of reoffending, and in fact do more harm than good.
We must ensure that as we try to make a real shift away from short prison sentences to community sentences, members of the judiciary have real confidence in and knowledge of the options available to them with community sentences. Magistrates, in particular, and judges, sometimes, raise with me a number of problems with community sentences, which my noble friend Lord Ponsonby mentioned in his opening remarks: first, the number of people who reappear before them having failed to complete a community sentence, with the consequence that a short prison sentence is the only option open to them; secondly, and related to that, poor local supervision of community sentences; thirdly, the lack of capacity in local areas to deliver support of community sentences, especially those with a treatment requirement; and, fourthly and finally, sometimes a lack of detailed knowledge of community sentences with such a treatment requirement.
There are a number of ways we can address these problems. The first is better understanding of treatment requirements. They essentially cover three areas: mental health, alcohol addiction and drug addiction. As these issues are often interrelated, sentences should consider not just one of the treatment requirements but, where appropriate, more than one treatment requirement at the same time to meet the often complex needs of the individual to ensure the best possibility of successful completion of the sentence. To assist the judiciary in this, information about the complex needs of individuals should be presented to the court at the earliest opportunity, combining assessment information from liaison and diversion services and probation pre-sentence reports.
Secondly, we need real investment in local mental health, alcohol and drug services so that members of the judiciary have confidence that the sentence they impose can be delivered. Thirdly, as a consequence of the reconstruction of the National Probation Service,  improved supervision must be rolled out. Fourthly, there must be better training of the judiciary to ensure that the options for community sentences are well understood. Fifthly and finally, as a member of the Government’s advisory board for women offenders I say that there is a good example in the Government’s strategy for women offenders, which clearly supports a significant shift to community sentences and recognises the need to invest in locally based women’s centres as the hub for the supervision and support of sentenced women.
Taken together, I believe the presumption against short sentences would be successfully introduced, with overarching benefits across the whole criminal justice system, and therefore I strongly support these amendments. I hope the Minister will accept the arguments.

Baroness Bennett of Manor Castle: My Lords, I offer Green support for Amendments 212 and 213, with a preference for Amendment 213, which this debate has made clear is the stronger of the two. I return to the Committee after two weeks away from your Lordships’ House at the COP 26 climate talks. There we heard again and again about the need for evidence-based policy-making on the climate. It is very clear from the powerful introductions from the noble Lords, Lord Ponsonby and Lord Dubs, and all of the subsequent debate, that the evidence here is clearly that short prison sentences do not work.
I very much agree with the comment by the noble Lord, Lord Beith, in response to the noble Lord, Lord Pannick, that those words are there in the Sentencing Code, but clearly we need to strengthen this prescription. The figures from 2019 show that more than 44,000 prison sentences of less than six months were handed out. That was nearly half of all people sent to prison. Some 68% reoffended within a year of release, and for theft offenders, the rate was 82%. Two-thirds of the women in prison are serving a sentence of less than six months. Like other noble Lords, I go to the excellent group, Revolving Doors, and the experience of one person, Robert, subjected to a whole succession of short sentences. He said:
“Any support with drugs and alcohol I had in community stopped when I went to prison. I didn’t access any support in prison and certainly there was no planning when I was released.”
Very briefly, I turn to the reference to children in Amendment 212. The report from the Joint Committee on Human Rights, Human Rights and the Government’s Response to COVID-19: Children Whose Mothers are in Prison, indicated that the Government do not have clear figures on the number of women in prison who are separated from dependent children. It recommended that the Government undertake a census and ask all women coming into prison whether they have dependent children and what ages they are, and that those figures be collated and reported regularly. Can the Minister tell me, either now or in the future, whether that recommendation from the Joint Committee on Human Rights has been acted upon?

Lord Hope of Craighead: My Lords, I support both these amendments, but I want to add a brief comment on the mechanism which they both have in  common: the giving of reasons. I know from my own experience how valuable it is to marshal your thoughts when you are having to give reasons, and sometimes when you write them down you wonder whether your thoughts in the first place were correct, and you may think again as a result. So the mechanism that is being suggested is a good one and, with great respect to my noble friend Lord Pannick, I think Amendment 213 in the name of the noble Lord, Lord Ponsonby, does add something to the code.
Of course, the code encourages care in passing custodial sentences and it sets it out very well, but it is this additional element which is of value. One particular word in the amendment adds force to it, and that is “must”. Everybody will have to do this. The noble Lord will know better than I do how often magistrates in particular pass custodial sentences without giving reasons. The point is that this discipline, which both amendments seek to inject into the system, adds value.
That having been said, I hope that these reasons will not just become a rota, because there is some experience in the Supreme Court where we had to give reasons for refusing leave to appeal; we had many of these cases to deal with, and we adopted a mechanism which I think the Minister will know quite well—it was the same reason given every time. That does not really meet what I think the noble Lord, Lord Ponsonby, is getting at, and I hope the Minister will be able to reassure us that when the word “must” is put there, together with the other matters in his report, it will actually add value and people will really think before they give their reasons, and not simply adopt a formula.

Lord German: My Lords, I would like to add a little to the evidence which has already been provided to the Minister, but he must of course know the evidence which has already been made available to him. Just in case it has not, I repeat what the recent sentencing White Paper says: short sentences
“often fail to rehabilitate the offender or stop reoffending.”
It goes on:
“A Ministry of Justice 2019 study”—
an analytical exercise, full of figures—
“found that sentencing offenders to short term custody with supervision on release was associated with higher proven reoffending than if they had instead received community orders and/or suspended sentence orders.”
In other words, the Government’s own evidence points to supporting these amendments—not necessarily in the same words, but certainly the thrust of them. We should remember that, pre-pandemic, nearly half of those people who were sentenced to custody in England and Wales were subject to short sentences of less than, or equal to, six months.
There are many reasons why we must support the change—more effectively reducing reoffending, dealing with issues such as drug use and producing better outcomes for women. Short prison sentences do not provide sufficient time for addressing those issues, such as dealing with substance addiction, or benefiting from any education and training facilities on offer. There may not even be sufficient time for the prison authorities to devise a programme to address the prisoner’s needs on release day. The best we can say about short sentences is summed up by one of the  former Conservative Prisons Ministers, of which there have been many in recent years, who said that short prison sentences are
“long enough to damage you but not long enough to heal you.”
Almost two-thirds of prisoners sentenced to these terms of less than 12 months will reoffend within a year. The amazing statistic is that nearly half of adults are convicted of another offence within one year of release, but anyone leaving custody who has served two days or more is now required to serve a minimum of 12 months under supervision in the community. As a result of not fulfilling their supervision orders in some minor way, 8,055 people serving a sentence of 12 months or less, and sometimes of only a few days, were recalled to prison in the year ending December 2020.
What has happened to the Conservative plan to secure a reduction in the use of short sentences? I think I know the answer, but it would be helpful if the Minister could confirm to the House what has happened to this idea. The Bill can address this issue. To finish with the words of a former Conservative Secretary of State:
“For the offenders completing these short sentences whose lives are destabilised, and for society which incurs a heavy financial and social cost, prison simply isn’t working.”
Offenders are less likely to reoffend if they are given a community order. These are much more effective in tackling the root causes behind criminality.
Given the evidence of both Conservative Secretaries of State and the evidence produced in the Government’s own studies, can the Minister explain whether there has been a U-turn or a Z-turn, or whether the course is laid out as described in the evidence that they have received?

Lord Marks of Henley-on-Thames: My Lords, this debate has raised two important issues: the justification for short custodial sentences and how we curtail their imposition in practice.
The debate saw an interesting exchange between the noble Lord, Lord Pannick, and my noble friend Lord Beith, and I take the point made by the noble Lord, Lord Pannick, that the law requires courts to avoid unnecessary custodial sentences where alternative sentences are appropriate. However, my noble friend Lord Beith is right that far too many short sentences are still imposed. The noble Baroness, Lady Bennett of Manor Castle, gave us some of the figures. The noble and learned Lord, Lord Hope of Craighead, made the point that the amendment does add something to the existing law. One thing it adds is that it is focused entirely on short sentences, whereas the Sentencing Code provisions are not.
This House has heard endlessly of the damage that short custodial sentences do. There simply is no evidence to justify their regular imposition. If the Minister has any such evidence, perhaps he can tell us what it is. We regularly stress the extent to which the rate of reoffending following short sentences greatly exceeds reoffending rates for community sentences, a point made by the right reverend Prelate the Bishop of Bristol, using the words of the right reverend Prelate the Bishop of Gloucester; it was a point also made by my noble friend Lord German a moment ago.
The immediate effect of imprisonment is dramatic: families are split, jobs are lost and housing is imperilled. The noble Lord, Lord Dubs, made these points. None of these adverse events is reversible for short sentences, any more than for long ones. The disruption of lives for the short periods that short sentences inevitably involve far outweighs any possible good that can come of those sentences. Such sentences necessarily offer no proper chance to arrange treatment to address issues—often long-term—of mental health, drug abuse and alcoholism. They offer little or no prospect of courses, training or rehabilitation, and they do not enable contact with potential employers, offer any opportunity for engagement with the voluntary sector with a view to arranging support in the community on release, or help with family or housing issues.
The programme that short sentences impose on the Prison Service and probation service can be bluntly summarised. Step one: cut all ties that the offender has with family and any employer, risking housing stability and probably posing difficult and intractable financial problems on the offender and the family in the process. Step two: lock up the offender, not at a predictable prison or one selected in any way to meet the particular needs or problems of the offender in question but at one that has the space for a short-term prisoner suddenly added to the prison population. Step three: allow no time to organise meaningful help or support. Step four: release the offenders with less support than they had at the time of sentencing.
Amendment 212 in the names of the noble Lord, Lord Ponsonby, and my noble friend Lord German attempts to force sentencing courts at least to spell out a justification for short sentences. This would be salutary. The principles in proposed new subsection (2B) seem most important, and I will focus on paragraph (b), which states that
“custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime”.
But other principles are equally important. I particularly mention proposed new paragraphs (a) and (c), which encourage sentencers to get away from the habit of courts to commit to ratcheting up sentences from one community sentence to another and then to custody. Amendment 213 would have a similar effect to Amendment 212, with the important presumption against short sentences. It is stronger than the present Sentencing Code, in clearly focusing on short sentences.
The second issue raised by this group is that of primary carers and pregnant women. We discussed this at some length on the amendment moved by right reverend Prelate the Bishop of Gloucester on 1 November, as mentioned by the noble Lord, Lord Bradley. We considered the report of the charity Women in Prison, mentioned by the noble Lord, Lord Hunt of Kings Heath, in the debate on the second group today. The sudden effect of separation is important. It is felt not just by parents who are primary carers but by their children.
We mentioned the loss of the homes of 95% of children whose mothers are imprisoned and therefore forced to lose their homes. For the children of  primary carers, parental prison leads to low educational achievement, truancy, mental health issues, alcohol dependence, drug abuse and later criminality. But similar outcomes are also to be expected from short sentences passed on the primary carers of those children. The appalling effect on pregnant women and their children was also dealt with in an earlier group today.
The Government need not only to restate their opposition to short sentences but to reinforce it. For the support in principle for these amendments expressed by the noble Lord, Lord Pannick, to become a reality, the law needs more teeth than it has at present. These amendments provide those teeth.

Lord Wolfson of Tredegar: My Lords, it is important to remember what is in the amendments and what is not. We are not really debating whether short sentences are or are not a good thing; government policy on that has been stated frequently and I will restate it shortly. I am not proposing to make any sort of turn, whether a U-turn or a Z-turn. Instead, I will keep on the straight and narrow, if I can use that phrase in this context.
It is important to remember what the amendments seek to do. They would prevent the court passing a short custodial sentence unless it is satisfied that no other sentence is appropriate. They would also require the court, if imposing a short custodial sentence, to explain why alternative sentences were not considered appropriate. Let me be clear: I understand absolutely the sentiment behind the amendments and appreciate, as the noble Lord, Lord Dubs, made very clear, that this is not saying that there are no circumstances in which a short custodial sentence could be appropriate—I fully take that on board.
I agree that short custodial sentences can, in many cases, be less effective at tackling reoffending than community sentences. The noble Lord, Lord Ponsonby, was very clear about the importance that magistrates attach to community sentencing and how it is important that they have confidence in the community sentence regime. The words of the right reverend Prelate the Bishop of Gloucester that were read to us also questioned whether short custodial sentences were, to use her phrase, an effective remedy. I think I have dealt with that point. I listened with real care to the testimony I heard at the event she organised and which I was very happy to attend.
The Government cannot support these proposals because they reflect existing law which is sufficiently robust. With respect to the noble Lord, Lord Beith, when it comes to statute, I do not believe that saying something again makes it stronger. If something is already in statute and is not being done, it is critical to investigate why it is not being done, and not simply say the same thing again. I therefore gratefully adopt some of what has already been said to the Committee by the noble Lord, Lord Pannick.
Section 230 of the Sentencing Act 2020—let us just see how it works—places important restrictions on the courts imposing discretionary custodial sentences. It starts with a negative:
“The court must not pass a custodial sentence”—
the starting point is that the court cannot pass a custodial sentence; that is the default—and then continues:
“unless it is of the opinion that … the offence, or … the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.”
Section 77 of the Act goes further and makes clear that even where the threshold for passing a custodial sentence has been met, the court may still pass a community sentence after taking into account any mitigation. Even then, where a court has formed the view that only a custodial sentence can be justified, even in light of any mitigation, it may still suspend that sentence so that it does not become an immediate custodial sentence, taking into account factors such as realistic prospect of rehabilitation, strong personal mitigation, which would obviously include the effect on dependants, as we discussed in earlier groups, and significant harmful impact on others of immediate custody. We suggest that, taken together, this provides a very robust framework which would ensure that short custodial sentences are passed only where there is really no other alternative for the court.

Lord Marks of Henley-on-Thames: I am very grateful to the Minister for giving way. Does he take my point that none of those provisions focuses on short custodial sentences in particular, as opposed to custodial sentences in the generality?

Lord Wolfson of Tredegar: I accept that they do not refer specifically to short custodial sentences, but when the court is considering a short custodial sentence, the particular factors the court would have to go through before imposing it—and particularly before imposing an immediate short custodial sentence—would be all the starker. It is important that we have a consistent regime. For the reasons I have set out, I do not think it necessary or helpful to have a separate regime for shorter custodial sentences. The position on that, I suggest, is already absolutely clear, as is the requirement for a court to explain its reasons for passing sentence. It is important to recognise that the court has to explain its reasons for passing any sentence, not just a custodial sentence; otherwise, the Court of Appeal will have something to say about it. That is set out in Section 52 of the Sentencing Act.
I hear the point made by the noble and learned Lord, Lord Hope of Craighead, that when it comes to courts explaining the reasons for their sentences, it is very important that they are bespoke and not off the peg—if I can put it that way. That is very important, not least for the offender to know why that sentence has been passed. I will not say any more about the reasons given by the Supreme Court for refusing permission to appeal, but the noble and learned Lord was certainly right that I was all too familiar with receiving those reasons in my cases.
The amendment tabled by the noble Lord, Lord Ponsonby, goes further because it sets out a list of “principles” the court must take into account. I suggest to the noble Lord, who is very familiar with this area, that those principles are by and large set out very clearly already in the guidelines from the Sentencing Council. I suggest that the principles enshrined in legislation would not take us any further.
As the noble Lord knows, there are five statutory purposes when it comes to sentencing, set out in Section 57 of the Act:
“the punishment of offenders … reduction of crime (including its reduction by deterrence) … reform and rehabilitation … the protection of the public, and … reparation by offenders”.
A sentence can serve one or more of those purposes. The Act also states that, even when the threshold for custody has been passed, that does not mean that a custodial sentence is inevitable—particularly for offenders on the cusp of custody.
Imprisonment should not be imposed where there would be a disproportionate impact on dependants. We touched on that today. We looked at that in a lot more detail in an earlier group, so I hope the Committee will forgive me for not dealing with that in any more detail. I have set out the position in some detail already. It is fair to say that, when this amendment was tabled in the other place, Alex Cunningham MP fairly recognised that the principles are already accepted in the sentencing guidelines, which all courts are required to follow; they are not optional. I suggest that the amendment is unnecessary.
Proposed new subsection (3) of the amendment from the noble Lord, Lord Ponsonby, concerns the impact of custody on the children of primary carers or the unborn child of a pregnant woman. I think that is almost identical to an amendment we discussed earlier, tabled by the noble Baroness, Lady Massey, the noble Lord, Lord Dubs, and the noble and learned Lord, Lord Falconer of Thoroton. Again, I have responded to that in some detail already, so I am not proposing to say any more about that.
I will pick up two other points. First, the noble Lord, Lord Bradley, talked about Scotland. The position in Scotland is different. It has a very different sentencing regime from that of England and Wales. The Sentencing Code here, which I have set out, contains the requirements and protections which I have sought to explain. For those reasons, we do not believe that the amendment is necessary; nor, with respect, do we believe we get much assistance in this regard from looking at the Scottish law because there is a very different system for sentencing.
The noble Baroness, Lady Bennett, asked me about the JCHR recommendation. In the time I have had, I have an answer here for her. It is fair to say that it is slightly off-topic. Perhaps she would be happy if I were to write to her on this point, rather than take further time. I will set out the answer in writing; I hope that is acceptable.
For those reasons, we suggest that this is already covered in legislation and in the sentencing guidelines. I invite the noble Lord to withdraw his amendment.

Lord Ponsonby of Shulbrede: My Lords, I thank the Minister for summing up his response to the two amendments in this group. I feel I have been around this track a number of times over the years and we hear the same arguments again and again. The central point is surely that made by the noble Lord, Lord Beith: the current state of affairs is not satisfactory. We have the merry-go-round of short sentences so that sentencers,  including myself, feel that we have to make short sentences because we have repeat breaches of community orders and some sentencers do not have confidence in them. So the merry-go-round carries on, with all the disruptive and damaging consequences which we have heard about from many noble Lords in this debate.
I am not saying that my amendment is significantly better than that of my noble friend Lord Dubs. I am saying, however, that there needs to be a holistic response of shorter sentences and better community sentences which people have confidence in, and which the offenders stick to and benefit from.
I will just come to the question from the noble and learned Lord, Lord Hope, about giving reasons. Magistrates’ courts are not a court of record. However, we give reasons and write them down—particularly if we think that we are going to be appealed. So, yes, we do give reasons. I beg leave to withdraw my amendment.
Amendment 212 withdrawn.
Amendment 213 not moved.
House resumed. Committee to begin again not before 9.02 pm.

Covid-19
 - Statement

Lord Kamall: My Lords, with the leave of the House, I shall now repeat a Statement made earlier in another place. The Statement is as follows:
“Mr Speaker, I will start by saying a few words about the incident that took place at Liverpool Women’s Hospital yesterday. This is an ongoing investigation into what has now been declared a terrorist incident by police so it would not be appropriate for me to comment in any detail, but I express my thanks to all the NHS staff and emergency services who responded to the incident. They showed the utmost professionalism in the most difficult of circumstances and my thoughts—and, I know, the thoughts of the whole House—are with them and anyone who has been affected.
With permission, I shall make a statement on the Covid-19 pandemic and the life-saving work of our vaccination programme. A year ago today, we were in the midst of our second national lockdown, a time when we endured major restrictions on our life and liberty and when we observed a period of remembrance where we could not come together and pay our respects in person in the way that we would all have wanted to. Our country has come very far since then. We have put over 109 million vaccine doses in people’s arms through our world-leading vaccine programme, which means that we can approach this winter with the best possible chance of living with the virus. The data clearly demonstrates that vaccines work. This month’s figures from the ONS show that, between January and September, the risk of death involving Covid-19 was 32 times greater in unvaccinated people than in those who are fully vaccinated.
However, although we have built up that huge protection, this is not a time for complacency. Earlier this month the WHO’s Europe director said that Europe was
“back at the epicentre of the pandemic”.
Just this weekend, the Netherlands and Austria have put in place partial lockdowns after surges in cases.
We also still face the risk of new variants just as we have seen with the emergence of AY.4.2, the so-called delta-plus variant. The latest data shows that it now accounts for around 15% of cases in the UK. Although delta-plus may be more infectious than the original delta variant, our investigations indicate that our vaccines remain effective against it. Still, we know that there will be more variants in future, and we do not want to go backwards after all the progress we have made. So we must stay focused on the threat in front of us and seize every opportunity to bolster our vital defences as the winter moves in.
That includes our vaccination programme, which is our primary form of defence. Last week, I announced to the House that health and social care providers in England must make sure that all workers other than those who are medically exempt, are fully vaccinated against Covid-19 so that vulnerable patients have the greatest possible protection against infection. Today, I shall update the House on more measures that we are taking to keep ourselves on the front foot.
First, we are expanding our booster programme, which is essential so that we can keep upgrading our protection in this country. Our vaccination programme has given us a strong protective wall, but we need to use every opportunity to shore up our defences. Evidence published this month shows how protection against symptomatic disease, hospitalisation and death from Covid-19 gradually wanes as time passes, and this is more likely if you are older or clinically at risk. Even a small drop in immunity can mean a big impact on the NHS; if protection drops from 95% to 90% against hospitalisation in those who are double-vaccinated, that would mean a doubling of hospital admissions in that group of people, so topping up our immunity through booster doses is essential to our security for the long term.
Today, the UKHSA has published the first data on booster vaccine effectiveness in the UK. It shows that people who take up the offer of a booster vaccine increase their protection against symptomatic Covid-19 infection to over 90%, and protection against more severe disease is expected to be even higher. So we are intensifying the booster programme ahead of the winter. Over 12 million people have now had their top-up jab, and over 2 million were given it last week. We have also made changes to the national booking service so that people can prebook their top-up doses a month before they become eligible. Last Monday, we saw almost 800,000 bookings in a single day in England, which is a new record.
Secondly, we are taking another step forward. The JCVI has recommended offering all adults aged 40 to 49 a booster dose six months after their second dose, using either the Pfizer or Moderna vaccines. I have accepted that advice, and 40 to 49 year-olds will be able to get their top-up jab from next Monday if they are eligible. The JCVI has also said that, in due course, it will be considering whether boosters are  needed for all 18 to 39 year-olds, along with whether additional booster doses are required for the most vulnerable over the long term. I look forward to receiving that advice in due course.
Just as we extend protection through booster doses, we are also ramping up our efforts to protect younger people. Our programme for 12 to 15 year-olds is progressing at pace. Yesterday, we hit the milestone of 1 million 12 to 15 year-olds being vaccinated in England. We are also offering a vaccine to 16 and 17 year-olds. I would like to update the House on some further steps that we are taking.
In August, we decided, in line with JCVI advice, that all 16 and 17 year-olds could be offered a first dose of a Pfizer vaccine. That was apart from a small number of those in at-risk groups who were offered two doses. Now, the JCVI has advised that all 16 and 17 year-olds should also be offered a second dose, and that it is even more confident about the safety and benefit of doses in 16 and 17 year-olds. As Dr June Raine, the chief executive of the MHRA, said this morning: “As the data have accrued, we’ve become more and more reassured that the safety picture in young people and teenagers is just the same as what we’ve seen in the older population.”
The JCVI advises that, unless the patient is in an at-risk group, the second dose should take place 12 weeks after the initial dose, rather than eight weeks. I have accepted that advice. The NHS will be putting it into action. Once again, these jabs will start going into arms from next Monday. This will extend the protection of a vaccine to even more people and strengthen our national defences even further.
Our vaccination programme has paved our path out of this pandemic and given us hope of a winter that is brighter than the last. Today, we are going even further, extending our booster programme and offering great protection to younger people, so that we can fortify the defences that we have built together and help our nation to stay one step ahead of the virus. I commend this Statement to the House.”

Baroness Thornton: My Lords, I thank the Minister for actually reading the Statement today and for updating the House on the latest JCVI recommendations. I have to question the last statement that the Minister made. When you have nearly 40,000 infections, as we have today, I wonder if we are one step ahead of the infection or not.
We still see people who are keen to come forward to receive their booster dose but who are still experiencing difficulties in getting it. Does the Minister have an age breakdown by region? I repeat a question that I asked last week. What are the Government doing to fix the ongoing problems with the stalling of the vaccination programme? It is obviously exactly right to accept the JCVI recommendations about extending the programme, but my questions are about how effective we are being in delivering that. Not only is there some confusion about the booster vaccinations, we have also seen some stalling in giving the second dose. There are areas of the country where the second dose vaccine rates are as low as 52%—which is what they are in Westminster.
While we welcome the JCVI decisions to extend Covid booster vaccinations to those aged between 40 and 49, and second doses to 16 and 17 year-olds, there is still a large challenge. As I say, infection rates remain high. Today’s figures show 39,705 cases. Can the Minister give the demography of those being hospitalised and whether this is changing? Can he inform the House, either tonight or by letter, the demography of patients admitted to hospital with Covid—their age, vaccination status and the gravity of their illness? Do we yet know the incidence of genome sequences of the new cases and what has been learned about this?
The Government’s commitment was for all children to be offered a jab by half-term, yet only a third of children have been vaccinated. That means we are quite a long way behind. When does the Minister believe we might catch up? When will all the children who should be vaccinated at least have had their first jab, if not their second?
Last week, the Secretary of State said that he could not rule out the policy of over-65s being banned from all public places if they have not had their third jab, as they have been in France. He said, “We’re not looking at it yet but I can’t rule it out.” Can the Minister confirm whether the Government are considering locking down pensioners who cannot show proof of a booster on an iPhone?
The Minister would expect me to raise the issue of the terrible pressure on our NHS. Today we heard from ambulance chiefs about 160,000 patients coming to harm every year because ambulances are backed up outside hospitals. Thousands of patients will suffer terrible harm. All 10 ambulance trusts are on high alert. We know that NHS staff are stretched and tired, and that there are not enough of them. We know that one in five beds is occupied by an older person who should be discharged and who needs care, but because of the crisis in social care, both domiciliary and in care homes, there is nowhere for many of them to go and no one to look after them.
I am sure the Minister will tell the House about the extra expenditure and the tax rise, but the truth is that the Secretary of State failed to secure a new funding settlement for long-term recruitment and training in the Budget, so how will we recruit the extra staff the NHS needs? The noble Lord’s boss failed to secure the investment needed to fix social care in the Budget. Public health failed to get serious attention in the Budget. We are at the beginning of the winter period and it looks bleak, so what is the plan to get the NHS through this winter without compromising patient care?
I have another few matters to raise. Why does the NHS app still not recognise booster jabs? Apparently, the Prime Minister said at a press conference earlier that this would happen, but he did not say when. Does the Minister have any further information about that?
Indeed, on border controls, Ministers insist that vaccinations are the UK’s main line of defence, but the Conservative Party chair, Oliver Dowden, said this morning that the situation was being kept under review, with alarm over a spike in cases on the continent. As we have seen, Austria has imposed a draconian new lockdown on unvaccinated people after a dramatic increase in infections, and Germany, France and Italy  are seeing a significant uptick in outbreaks. Do the Government have a contingency plan for travel restrictions given the fears of a rising fourth wave in Europe?
Finally, and shockingly, we learned today that Covid rates in Parliament were four times the London average in October. Does the Minister believe that this relates to the time when many Conservative Members, particularly in the Commons, were shunning wearing masks and presumably allowing their staff to do the same? I understand that a team from his own department turned up at a Standing Committee without masks a few weeks ago and had to be supplied with them by the clerk of that committee. This smacks of arrogant leadership, led by the Prime Minister last week on his hospital visit. Unfortunately, it is not only unattractive arrogance but dangerous, because it will cost lives.

Baroness Tyler of Enfield: My Lords, I thank the Minister for repeating the Statement. At this afternoon’s No. 10 press conference, Professor Chris Whitty made it very clear that doctors and scientists are increasingly concerned about the average of 37,500 cases over the last week and the high number of Covid cases in hospitals. Professor Whitty said that it would be a tough winter and added that, in addition to the nearly 9,000 Covid patients in hospital, all other areas of the NHS are under growing and intense pressure. He recommended that, in addition to getting their vaccinations, everyone should use face masks and ventilation to help reduce the number of cases.
This morning, Oliver Dowden, who was just referred to, said “It is in our hands” whether further restrictions in plan B are put in place this winter, but clearly the Government’s current communications on just encouraging using face masks and ventilation indoors and on transport are simply not cutting through. It certainly was not on my Tube journey in today, where distressingly few people were wearing a mask. Even if the Government do not want to implement the whole of their plan B, why will they not at least mandate face masks and improving ventilation on public transport and indoors when so many people across the spectrum are crying out for this to happen?
Leaving it to individual choice and personal responsibility is far too weak and inconsistent a message. It is crystal clear that the Prime Minister does not want to implement plan B, but is the reality not that he is far more likely to have to do so—or, indeed, move straight to plan C, a total lockdown—if mask-wearing is not made mandatory immediately? Does the Minister agree with me, and the point just made by the noble Baroness, Lady Thornton, that all parliamentarians and most particularly Ministers have a duty to set a clear example of mask wearing inside and on public transport?
Professor Whitty highlighted the stark figure that 98% of pregnant women admitted to hospital had not been vaccinated, and that same ratio applied to those in intensive care. What specific steps are the Government and the NHS taking to talk directly to pregnant women to encourage them to have their vaccinations?
It was worrying this afternoon when the Prime Minister said that he “hoped” that booster and third jabs could be logged on the online system “soon”.  We have been asking questions about this system for weeks now. Can the Minister look into Pinnacle, one of the systems that logs people’s Covid status, to find out why practitioners are not yet able to record a third jab for the clinically extremely vulnerable, as well as a separate listing for booster jabs for everyone else over 40? As the Prime Minister said this afternoon, evidence of booster jabs will be required for travel this Christmas, but because third vaccinations and booster doses are still not appearing separately on the NHS Covid app, there is a great deal of anxiety and frustration among people who will need not only to have had the jabs but to be able to provide the evidence. Can the Minister say—I underline the point made by the noble Baroness, Lady Thornton—when all third doses and boosters will be on the online system?
Finally, although I welcome the announcement that it is safe for 16 and 17 year-olds to receive a second dose, can the Minister explain where 16 and 17 year-olds will be able to get that second dose? Too often, young people wishing to have their initial jab were put off because they had to travel to a centre some way away, often by bus, train or car, often involving parents providing the transport. Will the Minister undertake to look into ensuring that there are centres in town centres and other easily accessible places so that young people can more easily access their second dose?

Lord Kamall: I thank the noble Baronesses for those sets of questions; I will answer them as best I can. I will work backwards, starting with where people can get their vaccines: the same places where the rest of the population can get their vaccines. Only last week, I booked my booster and was reassured to find that, rather than having to go even to my local doctor—which I was quite happy to do—there were two or three pharmacies, or chemist shops, near me that were giving the booster. One of my sons has booked his vaccine and that will be at the same pharmacy. So, clearly, we are rolling out the vaccines to more accessible places than initially; I do know someone considered clinically vulnerable who had to go quite far before, but we are now bringing the vaccines as close to people as possible.
I will try to answer some of the other questions. We are focused on building a wall of defence across the country. More than 261,500 hospitalisations have been prevented in those aged 45 and older, up to September 2021. Estimates suggest that 127,000 deaths and 24 million infections have been prevented as a result of the Covid-19 vaccination programme. This is why we are keen to stress that vaccination remains the best defence against this virus.
We are also working hard to make sure that as many people as possible have their jab as soon as they can. While we are very encouraged by the booster uptake and the record numbers, only today I have been in meetings where we have been talking about how to reach those hard-to-reach communities. I know that we have spoken about this before in this House. I have, very kindly, been offered advice from noble Lords across the House and I have been working with some noble Lords in relation to their experience as community organisers or working with certain communities where the demographics have shown a lower uptake. We are  rolling out the programme, and there will be a publicity programme rolling out as well. As we get more data, the JCVI and others are even more reassured by the safety of the vaccines and want to stress that as much as possible.
As I said, we are rolling out the booster programme. Nearly 10.6 million people have now received their third dose, and we are looking to vaccinate children as quickly as possible. We are working closely with schools, colleges et cetera to make sure that we get as close to people as possible.
I had hoped to be able to give a date for the booster appearing on the app. A number of noble Lords raised this with me both formally and informally, and I got straight on to NHSX to try to get an answer. I had hoped to be able to announce a date today, but I am still not able to do that. I am told, however, that good news will be available soon, and I hope it will be announced as quickly as possible. I think there are a few more checks to go through; those who have been in government before will understand how this works.
On the issue of NHS capacity, as of 12 November the number of beds occupied by Covid-19 patients had decreased by about 4% across England in the last week. Regionally, there was a drop of 4% in the east of England; a 2% increase in London; a 5% drop in the Midlands; an 8% drop in the north-east and Yorkshire; a 5% drop in the north-west; no real change in the south-east; and a drop of 8% in the south-west. Hospital admissions have decreased by 10% across England last in the week. There was a drop of 16% in the east of England; an increase of 1% in London; a drop of 11% in the Midlands; a drop of 15% in the north-east and Yorkshire; a drop of 11% in the north-west; a reduction of 8% in the south-east; and a drop of 10% in the south-west. Rates of admission to hospital with Covid-19 therefore appear to be decreasing. Hospital admissions in England were at 821 people per day as of 10 November. There were 6,777 patients in hospital in England as of 12 November, including 838 patients in mechanical ventilation beds.
In line with the approach that we have taken, we are constantly relying on data from the JCVI and its judgment, and this is constantly being reviewed in terms of rollout to different age groups. We are very fortunate to have secured a steady supply and delivery of Covid-19 vaccines. Many will also be aware of the other method by which the dose can be taken.
On making sure that we are focusing on elective care recovery, we have given £2 billion to help tackle the backlog that built up during the pandemic and have committed £8 billion over the next eight years. We hope that that funding will deliver the equivalent of 9 million more checks, scans and procedures to tackle the backlog, and we hope to have 30% more elective activity by 2024-25.
Turning to care homes, one of the campaigns being launched is the “made with care” campaign, which is advertising the fulfilling careers that can be had as social carers. It is very much focused on people who want to make a difference to other people’s lives. There is £550 million, including £162.5 million on the “made with care” campaign, and noble Lords will see that campaign rolling out.
Fortunately, 90% of staff in in older-adult care homes have received both doses, and 94% of such staff have had at least one dose. The data we are getting shows that, where care home owners are able to sit down with the workers who may have some doubts, there is an increase in uptake. Also, on a temporary basis until 24 December, people who have a medical reason why they are unable to have a Covid-19 vaccine can self-certify that they are exempt on medical grounds until that can be proven one way or another.
I am trying to make sure that I am answering all of your Lordships’ questions. If there are some that I have missed, let me assure noble Lords that I have not done so deliberately, and I will write to them to fill that information gap.

Viscount Stansgate: My Lords, I hope the House will forgive me if I emphasise an issue that has already been raised by both Front-Bench speakers: when this booster jab, which I am very glad the Minister has had, as have I, is going to be recorded. As I hope the House knows, it will prevent people, many people in this House, travelling to various countries—I mention France and Israel as only two of them—unless we can prove that we have had it. Although I am very pleased to know from the Minister that he has had the booster jab, and of course I believe him, I would like to know in what way he can prove it to me by showing it to me on his phone.

Lord Kamall: I apologise if I have misled the House: I have booked my booster jab but I have not had it yet. I was able to book it in advance but I cannot have it until—perhaps I should not make this public, but they have given it to me one day before the six months is up. This will be all over the front pages tomorrow, it will be a huge scandal and noble Lords will be calling for my head. I understand that.
On the serious point, I share the frustration of all noble Lords who have brought this issue up. I was hoping to be able to announce a date today, but it was scratched at the last minute. I think there was some technical reason, but we hope to have good news soon. I know that will be as frustrating to many noble Lords as it is to me. Believe me, I would rather have good news than to be seen to be avoiding answering the question.

Baroness Finlay of Llandaff: I shall follow up on the question asked by the noble Baroness, Lady Tyler, in relation to pregnant women in particular. There were maternal deaths early on. It would be most helpful if we could have the data on the number of such women, the pattern of vaccination and the pattern of maternal deaths from Covid and severe infection. Women are still worried and hesitant because there was a failure to vaccinate early on, because the data on safety was not there. Having data on the drop in the number of deaths will help to persuade women of childbearing age to pursue being vaccinated, whether they are already pregnant or not.

Lord Kamall: The noble Baroness raises a very important point and I apologise for not spotting it and answering it earlier. Many noble Lords will be aware of the very sad story of a young lady who died  because she felt that the vaccine was not safe; her mother is encouraging other pregnant women to have the vaccine. For that reason, we want clearly to communicate that the vaccine is safe and will not affect fertility, so getting the vaccine is the best way to protect yourself. Pregnant women are more likely to get seriously ill from Covid-19, and we know that vaccines are safe for them and make a huge difference. In fact, no pregnant woman who has had two jabs has needed hospitalisation with Covid-19. We need to make that clearer, and I will take this back to the department and the Government to make sure that we communicate more clearly. We all share the same will to share that message more widely.

Lord Pannick: On the NHS app, it is not simply the inconvenience to those travelling but the waste of time of NHS practitioners who are being asked to provide letters to people who are travelling. It is vital that the Minister uses his best endeavours to make sure this problem is resolved very speedily. My understanding is that those of us who travel with children under the age of 16 who have had one jab have no means through the NHS app of proving that they have had the vaccine. Is that right? If so, can the Minister do something about it?

Lord Kamall: The noble Lord’s first point repeats what other noble Lords have said, but for a good reason. I hope that our mentioning this more than once this evening stresses to the NHS and NHSX that it must be sorted out as soon as possible. As I said, I had hoped to have a date to announce this evening, and I am as frustrated as everyone else. We all want to travel and, importantly, there are countries that require proof of the booster.
In terms of children travelling, a solution has been developed to allow fully vaccinated children aged 12 and over to demonstrate their vaccination status. Up to now, some countries have required no proof from children aged 12 and over, but I am being told that a solution is being developed. I will try to push for that date as well, but I definitely want to get a date for when the booster will appear on the NHS app. All I can do is apologise that we have not done this yet.

Lord Cormack: My Lords, as we are clearly going to have to live with this vaccine for several years to come, could we have quite soon a programme for annual jabs worked out? It is clear that that is going to be necessary, and we ought to advance-plan. On the subject of masks: where one is in close proximity with others, they really should be obligatory. I came up on the train this morning, and at least half the people in the carriage were not wearing them. I am on my own on these Benches tonight, but I always wear one when others are around me, and I think that it is very important indeed that we take this elementary step so that it is compulsory on public transport, in shops and other places where people are in close proximity.

Lord Kamall: On future vaccinations, my noble friend raises an important point, and many will have seen in the media and elsewhere all the discussion about living with this vaccine. At the moment, we have  boosters at six months; as the technology and the understanding get better, it seems likely that we will move to annual vaccinations, as we do flu jabs. I cannot say that for definite, but the trend is going that way, given the development of the virus, the variants and the waning immunity over time. The effectiveness of each vaccine at the moment is six months, but one can see the longer term. However, please do not take that as a given—if that is incorrect, I will update the House.
On public transport: I went to a funeral today, and as I was travelling back on the underground, it said, quite clearly, that you must wear a mask, so that is being encouraged. It is part of plan B if we have to move to plan B, but all that data is being analysed and constantly updated with different factors. There is no one trigger for moving to plan B. In previous appearances at the Dispatch Box, I have read out the list of all the factors that are considered. At the moment, the main message is: the vaccine works. We want to encourage people to get the vaccine and especially try to reach those communities that have not even had their first or second vaccine yet.

Lord Hunt of Kings Heath: My Lords, I declare an interest as a trustee of the GMC and the Royal College of Ophthalmologists. Can I ask the Minister about the impact on the NHS generally and the pressure it is under? He will be aware that the Academy of Medical Royal Colleges issued a statement a few weeks ago on its concern about the abuse of NHS staff. What are the Government doing to ensure that NHS staff are able to go about their work without the horrific abuse that many have had to endure?
Secondly, I refer the Minister to the report of the Royal College of Physicians, a census that shows that 48% of advertised consultant posts across the UK were unfilled last year? Does this not show that Covid has exposed the frailties in the NHS? Unless the Government grip this workforce issue quickly, the pressures on the service are going to get worse and worse. What are the Government doing?

Lord Kamall: The noble Lord raises a really important point on staff, doctors, nurses and other healthcare workers in our health system. The Government have a zero-tolerance approach to abuse and harassment; we are investing in better security at GP surgeries and are committed to working with the NHS to make sure our primary care workers feel properly supported. We are also constantly having conversations with trusts and the NHS generally about making sure that staff feel safe to work and how we can make sure that that happens. Anyone who has visited a hospital recently will have seen the signs about zero tolerance.
We are constantly talking to NHS England about workforce pressures. We are looking at specific campaigns—for example, we have announced social care recruitment—and other campaigns to attract more workers to the NHS.

Baroness Bennett of Manor Castle: My Lords, on the Minister’s comment about masks on public transport, my understanding is that that is only in London and is not the case in the rest of England.  I draw to your Lordships’ attention my experience in Edinburgh Waverley station yesterday evening. Scotland of course does have a mask mandate, and it was very clearly announced at extremely regular intervals. Additionally, it came with a message that said, “That means that you are not allowed to eat anything in the station”, which I have never heard in England.
The Statement says that
“we must stay focused on the threat that is in front of us and seize every opportunity to bolster our vital defences”.
As most of the Front-Bench questions pointed out, this Statement entirely focuses on vaccines. We have been very aware of the issue of aerosol transmission for a very long time now. The last figures that I have been able to find—from a week ago—show that fewer than the promised 300,000 carbon dioxide monitors for schools have actually been delivered. They were promised by the end of the autumn term. Of course, all those CO monitors do is identify the problem—the lack of air circulation. They do not actually deal with it. Will that target be met, and will schools get their carbon dioxide monitors? More than that, are the Government providing adequate support for schools and indeed other organisations that identify a problem with ventilation?
I notice that the UK Health Security Agency is funding a trial of air purifiers of different sorts in 30 Bradford primary schools. This is two years after the pandemic started, and we have known for a long time about aerosol transmission and the problem of unventilated rooms. Not all school rooms or rooms in general—including in your Lordships’ House—can be ventilated. Are the Government really paying the attention that they should be to dealing with aerosol transmission, ventilation and air purification?

Lord Kamall: A lot of investment has gone into making sure that there is ventilation in schools. I will talk to my counterpart in the Department for Education to see what more can be done, but I know that the department is very aware of this issue and is looking more into it.
On the noble Baroness’s first question, we want to be clear and not confuse the message: vaccinations work and are our best line of defence. We do not want people to get a false hope that there are other ways to protect themselves. Not all people who do not take the vaccine are anti-vaxxers: some of them think that just wearing a mask may well protect them.
We want to focus on this message: get vaccinated; if you have been, get your booster; and if you have had your first vaccine, get your second one. There is nothing to fear from getting vaccinated. We are not only sending that message out but actively looking at different campaigns to reach those difficult-to-reach individuals in many communities.

Lord Young of Norwood Green: My Lords, on the importance of vaccination, what are the Government doing to combat the anti-vax message? My second point is on the terrible situation in hospitals, where paramedics are forced to stay and wait with patients. There must be something that we can do to alleviate that situation until there is a long-term solution. Have we identified best practice? The Government ought to be  thinking outside the box about what we can do to stop paramedics being trapped in hospital, denying them the ability to deal with other urgent cases.

Lord Kamall: I am sorry, but my memory has gone. What was the noble Lord’s first question?

Lord Young of Norwood Green: It was on anti-vaxxers.

Lord Kamall: The issue of anti-vaxxers is very difficult in a society where we believe in freedom of speech. Clearly, if they are impeding people from attending school, going to certain places or getting vaccinated, that is obstruction. However, if they are saying that they do not believe that the vaccines are safe or whatever, it is really difficult and we have to get that balance right. We are clear that we want people to be vaccinated but, at the same time, we believe in freedom of speech. Quite often, if you really believe in freedom of speech, you have to allow people to say things that you disagree with, I am afraid. However, where they are actively blocking people from getting vaccinated, I think we have work to do.
As for thinking outside the box, we are looking at a number of different areas. For example, the other day I heard a case of someone who had forgotten his asthma inhaler. His partner told him, “Stay here, I’ll get you another one from the all-night chemist”. The all-night pharmacist said, “I can’t administer that”. She then went to A&E with her partner’s details. A&E said, “No, he has to come in here”. In the end, when she went back to the hotel, the hotel said, “We’ll have to call the ambulance”. All that could have been avoided had there been a way for the person who had forgotten his inhaler simply to get another one, rather than having to call in paramedics. Therefore, there are a number of different ways that we can think outside the box to make sure that we do not put undue pressure on the NHS at this time.
Sitting suspended.

Police, Crime, Sentencing and Courts Bill
 - Committee (8th Day) (Continued)

Amendment 214

Lord Blencathra: Moved by Lord Blencathra
214: After Clause 124, insert the following new Clause—“Sex-specific incarceration for violent and sexual offendersAfter section 20 of the Gender Recognition Act 2004 insert—“20A Sex-specific incarceration(1) Where a person with a gender recognition certificate is serving a conviction for a violent or sexual offence, that person shall be treated with respect to housing on the prison estate by reference to the sex registered at their birth.(2) Where a person with a gender recognition certificate is remanded in custody for a suspected violent or sexual offence, that person shall be treated with respect to housing on the prison estate by reference to the sex registered at their birth.””  Member’s explanatory statementThis amends the Gender Recognition Act 2004 to ensure that prisoners with a gender recognition certificate who are suspected or convicted of violent or sexual offences are treated as their sex registered at birth with respect to housing on the prison estate.

Lord Blencathra: My Lords, I am moving this amendment in my name and those of my noble friends to defend the rights of female prisoners. This is not something I ever imagined I would have to do. In my 38 years in Parliament, I have always supported the rights of women, but I was never a champion because a large number of parliamentarians were far better qualified than me and I thought that women’s rights were generally headed in the right direction—not as quickly as they should be, but in the right direction nevertheless.
Now, I find that the rights of women are under the greatest threat I have seen in my lifetime. It is not just about their rights to safe places such as bathrooms, changing rooms, NHS single-sex wards and in prison; their whole existence as biological women is under existential threat as some people—nearly all men—seek to erase the word “women” from the lexicon or commandeer it for the use of men who identify as women. Let me be crystal clear: I completely support the right of men, as guaranteed in the Equality Act, to change their gender and identify as women. They must not be discriminated against. However, let us be equally clear that men who identify as the female gender are not biological women because, as has been said before, only women have a cervix and a womb, and only women bear children. It is not transphobic to point out that elementary biological fact, which has been at the root of human existence for countless millennia.
I believe that the threat against women is increasing daily. Young lesbian women are being condemned as transphobic if they refuse to have sex with men who claim to be women. What a perversion of common sense and reality that is. However, it is worse than that. The police say that there has been a doubling of crime by female paedophiles. That is a big fat exaggeration. Sexual abuse by women has increased, but it is still infinitesimally small in comparison to that by men. Lynne Owens of the National Crime Agency says that the problem of male paedophilia may be seven times higher than first thought. There has been a huge increase in male paedophiles, some of whom then describe themselves as women; of course, a thoroughly woke police force swallows that nonsense and records it as if the rape and sodomy of children was done by real women. Some of our police forces are trashing the reputation of women by accusing them of crimes committed by men. I believe that the message should go out to the police service that when a male is arrested or commits a crime, he should be recorded as male and never as female, no matter how he designates himself.
I turn to prisons, the substance of my amendment. I am afraid that the situation there is just as bad. Although I suspect that I am in a minority in this House—as I am on many things—I am not one of those who believes that women should not be sent to prison. When the crime justifies it, women should go to prison and be punished. However, that punishment should not include the threat of rape and violence from big, brutish rapists who have decided to identify  as women and get sent to a women’s unit. The female prison estate is currently run as a mixed-sex institution because the MoJ’s policies permit prisoners of the male sex, where they identify as transgender and fulfil certain criteria, to be allocated to the female estate and held in women’s prisons alongside vulnerable female offenders. Eligible males include those convicted of the most serious, violent and sexual offences and those with intact male genitalia.
Among others in prison at the moment, there is a vile man—I would describe him as vile—who raped two children, got his gender recognition certificate while in prison and is now swaggering around a female prison wing. I cannot name him or his prison. I believe that women’s prisons should be separate, single-sex facilities for the safety, dignity and privacy of women in prison. Since the Corston report in 2007, it has been acknowledged throughout the criminal justice system that women in prison exhibit patterns of vulnerability that distinguish them from both women in the wider community and male offenders. Female offenders report disproportionately high rates of previous experience of violent and sexual abuse; they also experience high rates of mental health problems. Indeed, in the previous debate, I heard the noble Lord, Lord Dubs, say that three-quarters of women in prison had suffered male violence before being sent to prison. A recent study of prisons in Scotland found a high prevalence—almost 80%—of significant head injury; these injuries were most often caused by repeated incidents of domestic abuse occurring over several years.
For many female prisoners, time in prison is often the first opportunity to tackle the complex issues around their offending, improve their health and access the services they need. Where women in prison have been the victims of sexual and violent assault, prison is often the first time they can be confident that they will be away from their male abusers. Where women in prison have been the victims of sexual and violent abuse at the hands of men, the presence of any offender of the male sex may have an inherently traumatising effect, regardless of the nature of offence committed. It is for good reason that approaches to tackling female offending have consistently emphasised the need for trauma-responsive services.
The Ministry of Justice policy that permits prisoners of the male sex to be housed in the female estate is called The Care and Management of Individuals who are Transgender. The policy states that all male prisoners who identify as transgender and who are in possession of a gender recognition certificate must be allocated to the female estate. The conviction, offending history, risk profile or anatomy are of no consideration.
Theoretically, a decision may be made to transfer to the male estate after risk assessment. We know of no situation where this has happened. Even the most high-risk male prisoners have remained in the female estate, including those convicted of violent and sexual offences against women and those with intact male genitalia. In respect of male prisoners who identify as transgender and who have no gender recognition certificate, initial allocation is to the male estate. The prisoner may then make an application to be transferred to a women’s prison.
In March 2021, a judicial review was brought against the Secretary of State for Justice, challenging the lawfulness of the MoJ’s policies that permit prisoners of the male sex to be housed in the female estate. Judgment was handed down in July and found that these policies are not unlawful. It would be quite extraordinary if the MoJ was found to be operating an illegal policy. However, the judgment was clear that the court had been called on to rule as to the lawfulness of the policy and not its desirability.
Lord Justice Holroyde acknowledged the negative impact of these policies on women in prison. He said
“I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence. I also readily accept the proposition … that some, and perhaps many, women prisoners may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender women who has male genitalia, and that their fear and anxiety may be increased if that transgender woman has been convicted of sexual or violent offences against women.”
He also said:
“I fully understand the concerns advanced on behalf of the Claimant. Many people may think it incongruous and inappropriate that a prisoner of masculine physique and with male genitalia should be accommodated in a female prison in any circumstances.”
I agree with Lord Justice Holroyde that it is both incongruous and thoroughly inappropriate. If it is lawful to house prisoners of the male sex who have been convicted of the most serious violent and sexual offences alongside women who have been the victims of violent and sexual assault, that law must change. It is wrong.
Under the Gender Recognition Act 2004, people who fulfil certain criteria are able to obtain legal recognition of their acquired gender. Legal recognition will follow from the issue of a gender recognition certificate by a gender recognition panel. A new birth certificate is also issued, with the sex marker changed to reflect the acquired gender and the name changed to the newly adopted name. There is no requirement for surgery or medical treatment to obtain a GRC.
GRCs have been obtained in prison by males convicted of violent and sexual offences who have then transferred to the female prison estate. I do not consider that the original intention of the Gender Recognition Act was to enable violent or sexual offenders of the male sex to be housed with women in prison, much less those who retain fully functioning male genitalia. I also make this point: these male prisoners want to identify as women. That is perfectly okay. Apparently, they do not want their male bodies, but every single one of them have retained their male genitalia as they swagger around female prison units. I suggest that those men, particularly those in prison, are simply faking being a woman to get access to real biological women in a female estate.
Clauses in the Gender Recognition Act clearly indicate that a GRC entitles a bearer to be treated as a member of the sex with which they identify for most purposes but not all. Hence, possession of a GRC expressly does not affect recording of parenthood. The possibility of being convicted of a crime defined as one that only a man can commit is also unaffected by possession of a GRC, as is the possibility of being a victim of a crime defined as one which only a female can be a victim of. Primogeniture is also unaffected.
I submit that incarceration for violent and sexual offences is a situation where a GRC should not take precedence over unchanged biological sex. The MoJ may be acting lawfully but it is not acting decently nor doing its duty to protect biological-sex women. Indeed, the Ministry of Justice policy documents do not talk about women, but call them non-transgender women, automatically giving top billing to men identifying as women, with real women described as non-transgender. That is why I say that women are being erased from the lexicon. A male, no matter how he identifies, should never be housed in a women’s prison. Like many government departments and organisations, the Ministry of Justice has fallen for the minority, militant transexual agendists, giving far more rights to men who claim to be women than to women themselves. My amendment is a small first step to defend women. There will be many more amendments to come as people realise that the assault on women is now a clear and present danger. I commend my amendment to the Committee.

Baroness Brinton: My Lords, the problem that Amendment 214 is trying to resolve is already addressed in the very strict codes of practice and guidance to the prison sector. Given that there is a full system of assessment of transgender prisoners, the prison environment in which they are currently placed and that in which they would like to be placed, it is worth running through the detail.
The noble Lord, Lord Blencathra, quoted from last year’s judicial review, but paragraph 75, where the explanation for the ruling starts, states:
“It is clear that the number of transgender women in women’s prisons is small, and the number who hold GRCs (and are therefore entitled to be treated as women in accordance with the Gender Recognition Act 2004) is very small.”
I say that in the light of the tone of the speech by the noble Lord, Lord Blencathra, which made it appear that there was a large invasion of trans women in women’s prisons.
The number of transgender prisoners is very small. However, the guidance on the management of prisoners is lengthy and clear, because transgender prisoners have human rights, as all prisoners do, and because they themselves are at serious risk in prison. The most recent statistics are from last year, and in its coverage of the data, the BBC noted:
“The total number of transgender victims far exceeds the number who were suspected of carrying out sex attacks, with only one such case in 2019.”
Between 2016 and 2019, of 97 sexual attacks in the women’s prison estate, seven trans women had been involved in sex assaults, either as the alleged perpetrator or assistant, with 90 of the sexual assaults being carried out by cis women. A further set of figures from the Ministry of Justice states that 11 trans women had been sexually assaulted in the men’s prison estate in 2019 alone. All this tells us that trans women are far more likely to be victims of assault in prisons than perpetrators and that many more women are assaulted by cis women in prison than by trans women.
However, even if the number of trans prisoners assaulting others is very low, it is right that there are safeguards in place, so what does the guidance say? It says that after a prisoner declares and can provide  evidence that they are living in the gender that the offender identifies with, there will be an initial local transgender case board which will, as appropriate, make arrangements for transfers to other parts of the prison estate.
The Parole Board published Guidance on Prisoners who are Transgender in March of this year, which sets out the law very clearly for the prison and probation services regarding prisoners who are transgender. The operational guidance states that
“all transgender individuals, irrespective of whether they are located in the estate which matches the gender with which they identify, must be allowed to express the gender with which they identify. However, decisions to locate individuals who are transgender in prisons that do not match their legal gender can be made only on the recommendation of a Complex Case Board. This board will take into account risk factors to the individual and risk to others”.
To make it clear, for any trans prisoners who might also be deemed a risk to other prisoners, a complex case board has to be called for transgender offenders, which will look at the complexity and specifically assess the risk of harm, prior to making decisions about prison location. The views of the offender must be presented to the board, but a number of healthcare and psychology leads would be there to ensure that any move to a women’s prison would be safe.
Options that a complex case board can consider include moving a prisoner to a women’s prison but keeping them in segregation or, if even that is felt to be too risky, moving them into a segregated part of a men’s prison that is staffed as if it were a women’s unit. There are also now a small number of transgender prison units. It seems that this document sets out well all the steps that need to be taken to protect the trans prisoner—who, as I have already said, is at much higher risk of assault than non-trans prisoners—while also protecting the other prisoners from someone who might be deemed a risk.
There was the case of Karen White, who sexually assaulted two women while on remand at New Hall prison in Wakefield in 2017. It is worth remembering that the Prison Service had to apologise in that case because it had not followed the procedures outlined above, failing all prisoners at New Hall. White should never have been put in a women’s prison and, had there been a complex case board, it would have assessed her as being a risk and not put her in a women’s prison.
The current Ministry of Justice and HMPPS 39-page policy on “The Care and Management of Individuals who are Transgender” says at paragraph 1.6:
“The proper assessment of risk is paramount in the management of all individuals in our care. The management of individuals who are transgender, particularly in custodial and residential settings, must seek to protect both the welfare and rights of the individual and the welfare and rights of others around them, including staff. Decisions must be informed by all available evidence and intelligence in order to achieve an outcome that balances risks and promotes the safety of all in our care and management.”
The process is there to protect all prisoners and to respect the rights and safety of all prisoners. This amendment is redundant. The actual facts of what is happening with trans women in prisons does not match the opening speech by the noble Lord, Lord Blencathra.

Lord Morrow: My Lords, I support the amendment moved by the noble Lord, Lord Blencathra, this evening. I do so not just because I have attached my name to it, but because I emphatically agree with what it seeks to achieve. Anyone who knows me is aware that I am an advocate for a strong law-and-order approach to crime; for those who break the law, the punishment must fit the crime—which often includes imprisonment. This amendment, however, is trying to protect the dignity of female prisoners.
The female prison estate is currently run as a mixed-sex institution. This is because the Ministry of Justice’s policies permit prisoners of the male sex who identify as transgender and fulfil certain criteria, resulting in them being held alongside vulnerable female prisoners. Some of these prisoners have been convicted of the most serious violent and sexual offences and are biologically male.
It surely follows that women’s prisons should be separate-sex facilities to preserve, as far as reasonably possible, the safety, dignity and privacy of women in prison. Since the Corston report in 2007 it has been acknowledged throughout the criminal justice system that women in prison exhibit patterns of vulnerability that distinguish them both from women in the wider community and from male offenders. It is also worth noting that female offenders report disproportionately high rates of previous experience of violent and sexual abuse, and experience high rates of mental health problems.
Where women in prison have been victims of violent and sexual assault, prison is often the very first time they can be confident that they will be away from their abusers, who are usually men. I strongly contend that, where women in prison have been victims of sexual and violent abuse at the hands of males, the presence of any offender of the male sex may have an inherently traumatising effect, regardless of the nature of the offence committed.
It is the Ministry of Justice policy—namely, The Care and Management of Individuals who are Transgender —that permits prisoners of the male sex to be housed in the female estate. The policy states that all male prisoners who identify as transgender and who are in possession of a gender recognition certificate must be allocated to the female estate. This is irrespective of any conviction, offending history, risk profile or anatomy, including those who are high-risk prisoners and those convicted of violent and sexual offences against women.
I too was going to refer to the judicial review that was brought in March 2021, but the mover of the amendment has adequately covered that, so I will refrain. However, I shall again emphasise one line: while the policies were found not to be unlawful, it should be said again that the judgment acknowledged the negative impact of the policies on women in prison.
Furthermore, there is no requirement under the Gender Recognition Act 2004, if people fulfil certain criteria, for them to have surgery or medical treatment to obtain a GRC. It is a fact, as has already been referred to, that GRCs have been obtained in prison by males convicted of violent and sexual offences who have been transferred to the female prison estate. The latest data available on the number of male-sex prisoners  who identify as transgender dates back to 2019, but back then it was 11 in number. I understand that new data will be available to be released, or at least is expected to be released, this month. Forcing women to share accommodation with prisoners of the male sex, particularly where those prisoners have been convicted of violent or sexual offences, arguably engages Article 3 on the right not to be subjected to inhuman or degrading treatment or punishment.
I urge your Lordships’ House to support this reasoned and sensible amendment, which is clearly intended to respect female prisoners, including their rights and dignity. Not to do so could be interpreted as not caring how female prisoners end up. Indeed, the conditions that they are subjected to could be construed as part of their prison sentence—which of course they are not, and never should be.

Baroness Meyer: My Lords, Amendment 214 seeks to eliminate the risks and dangers to women in prison by the muddled use in legislation of the terms “sex” and “gender”. They are not interchangeable. They have come to mean very different things. Matters have reached such a pitch that I am tempted to paraphrase the 18th-century man of letters Dr Samuel Johnson and say that “Allowing a person with a full set of male genitals the legal right to serve a sentence in a women’s prison is not done well, but you are surprised to find it done at all”. It is, not to put a too fine a point on it, barking mad.
The defiance of science, biology, common sense and reality can be traced back to the Gender Recognition Act 2004. This allows men who identify themselves as women to be recognised as women, even though they may be biologically unaltered from the day they came into this world in their birthday suits. The dangers and risks are obvious. Without our amendment, this legislation makes them even greater. The law also allows new birth certificates to be issued, without requirement of surgery or medical treatment. For all legal purposes, men become females with just a tap of a key on a computer. Piling absurdity on absurdity, it becomes a criminal offence to reveal that they were ever born as men.
As night follows day, just as paedophiles are attracted to the teaching profession and children’s charities, so men with violent sexual intent will be able to seek a gender recognition certificate as a licence to molest and rape women. The Ministry of Justice, in its folly, cannot provide figures for men guilty of such acts because, in a policy of self-inflicting Catch-22, they are categorised as women.
It is surely a fundamental right that women in prison, like women in a gym changing-room or a women’s lavatory, should be allowed to find themselves cohabiting with a person who does not have a penis. We all know that women in prison are especially vulnerable. It is therefore unthinkable that the law should allow them to be menaced by men incarcerated for violent and sexual abuses. The noble Baroness, Lady Brinton, says that it is only a small number, but a small number is a number. Is that what the law is about? The law should protect all.
Let me make one thing very clear: I am second to none in my support for gay, lesbian and trans rights. This has nothing to do with it. I still have the scars from having to fight as a young woman for equal opportunities in the male-dominated financial services industry. I still bear the scars of having to fight off crude sexual advances that today would carry a jail sentence. In one case, because I refused to submit to my boss’s advances, my promotion was held back for more than a year. This is why I was once a Stonewall supporter. It fought the good fight and won. The Marriage (Same Sex Couples) Act 2013 was a triumph for the humane society we strive to be.
However, today I weep for what Stonewall has become. It is now a cockpit for factions fighting over the meaning of trans rights, where many assert that biological sex does not exist. It is a modern version of the medieval controversy over how many angels could dance on a pinhead. I find it astonishing how many government departments and corporations have bought into this obscurantism.
Things have to change, and change soon. Approval of our amendment would be a start. No person with male genitals should be allowed to be remanded into women’s prisons or serve their sentences there. If the police insist on entering self-identified gender into their records, they must balance it with biological sex. Will the Minister ensure that Amendment 292G, which calls for the police to record birth sex rather than gender, is implemented?
Too many things are going backwards: life expectancy is down; obesity is up; the weather is becoming more violent; and the world has still not shaken off the coronavirus. Let us not add to our woes by bringing down the curtain on the age of reason by replacing it with the age of bigoted fabulists. Will my noble friend assure the House that he will not let ideology trump facts and ensure that women are better protected?

Lord Pannick: My Lords, the noble Baroness’s speech ranged very broadly indeed. We are in fact debating a complex penal issue where we have a policy that addresses the matter very sensibly, as the noble Baroness, Lady Brinton, explained.
I will add just one point to this debate. It is not difficult to see the danger to people who were registered as male at birth but who are now registered under the Act as female if they were required to be placed in a male prison, as this amendment would require, irrespective of the particular circumstances of their case, as long as they are a sexual or violent offender. It should not need to be emphasised, but I will emphasise it because it is the fact, that many of these people have had hormone treatment, and some of them have had reconstructive surgery that has given them primary and sometimes secondary sexual characteristics of a physical nature. What do the proposers of the amendment think will happen to such people if the Home Office is obliged to place them in a male prison?
Of course we would all agree that, if there is an offender in custody for a suspected violent or sexual offence who is in possession of a gender recognition certificate and poses a risk to others in custody, then specific steps should be taken to isolate and deal with  them. But that does not justify or require ignoring a gender recognition certificate in the way the amendment proposes.

Baroness Fox of Buckley: My Lords, it has to be said that when I talk to members of the general public and tell them that it is MoJ policy to allow prisoners of a male sex to be housed according to their self-declared gender identity in a women’s prison, irrespective of whether they have taken any legal or medical steps to acquire their gender, that they do not need to have gone through any physical transformation and still retain male genitalia, which we have heard lots about already in this debate, and that they do not even need to have obtained a gender recognition certificate—they need just to declare that they are women and demand that they are moved to the women’s estate, and it is seriously considered—they are aghast. It falls under the category of, “Has the world gone mad?”
That common-sense response might not feel appropriate when discussing legislation, but in this instance it may help us to look at this issue in practical, real-life terms, not just in abstractions. That is why I welcome the amendment very strongly. Although it does not resolve all my concerns, I welcome its modest, narrow aim of removing the most egregious aspect of this situation: allowing male prisoners who identify as trans but have convictions of violence or sexual offences against women to live with women prisoners. There really is no point in the Government issuing strategies and grand words about violence against girls and women if the same Government have no qualms about letting rapists share the same confined living quarters as vulnerable women in prison who, let us be frank, cannot leave or escape because they are locked up by the state. This amendment’s focus is on convicted sex offenders and it is urgent that the Government take notice.
It is important to note that when gender-critical commentators and academics raise qualms about the general policy of housing transgender prisoners in the women’s estate, they are often dubbed transphobic and accused of holding a prejudiced view of all trans women as sexual predators, but this is a malign caricature. At this point I give a shout-out of solidarity to Professor Jo Phoenix, an esteemed and conscientious criminologist who has been harassed and traduced for raising such legitimate concerns.
Wherever one stands on the general issue, this amendment is specific and cannot be accused of implying that all natal men, however they identify, are a sexual threat to women, because that would not be true. We are talking only about convicted sex offenders and those guilty of violence. I still hope this probing amendment might encourage the Government to look more closely at a range of issues in this area. I particularly want the Government to consider whether the Ministry of Justice’s involvement over a period of time with the controversial lobbying group Stonewall, which has already been referred to by the noble Baroness, Lady Meyer, as with so many public bodies, may—just may—have led to the skewing of policies in a particular direction.
For example, I know how keen this Government are on data and statistics, but as Kate Coleman, the founder of Keep Prisons Single Sex, has noted—this just seems incredible to me—the MoJ admits that it does not know how many prisoners identify as trans because, with a gender recognition certificate, they are counted by their new legal gender. I am not sure how the noble Baroness, Lady Brinton, can be so sure of the statistics she quotes, because the tools designed to assess any threat posed by male prisoners who identify as trans women cannot be picked up accurately. If someone with a GRC attacks a female prisoner, it will be recorded as an assault by a woman on another woman.
I also want to query who is listened to in this discussion on what is obviously a clash of rights. In the course of the recent High Court ruling we have heard about, Lord Justice Holroyde outlined the need to balance
“the subjective concerns of women prisoners”
with
“the rights of transgender women in the prison system.”
This made it sound as though the women, the biological women, were all being overly subjective, and the transgender women had rights. Describing one side as subjective and the other with rights misses a crucial point, because that transgender woman has an identity that is not an objective fact but a subjective desire and then a declaration. Why are women prisoners’ subjective but rational concerns afforded less weight here?
When the High Court acknowledged that women prisoners may well be worried and “scared” about sharing prison accommodation with male-bodied prisoners, the court said that that fear was not enough to outweigh the desire of some male prisoners to be housed with women. I wonder: when did the prison estate, or indeed the law, allow its policies to be dictated by prisoners’ desires? I have worked with prisoners over a number of years, particularly with Debating Matters Beyond Bars. Many of the prisoners I have worked with have declared that they desire decent prison education. They desire retraining and better conditions. The prison authorities certainly did not accommodate their desires, so why are these desires accommodated when it comes to the trans issue?
Finally, I am keen that the Government look carefully, and use this probing amendment to do so, at how staff in prisons understand the issue of sex and gender in the context of training. The MoJ policy entitled The Care and Management of Individuals who are Transgender advises staff to complete an “eLearning module” on transgender identity. One of the training courses is named intersecting identities. I have looked at these, and it all rather terrifies me. It is one-sided, jargon-ridden and ideological. I hope this amendment might point the Government to raise and review the whole issue. For now, at least, a very modest amendment should be taken seriously if they really mean they care about protecting women from violent men.

Lord Cormack: My Lords, I just want to intervene briefly. I support this amendment. To me, it is morally wrong for a physical man to be in a woman’s prison. It is as simple as that. If he has identified  himself as a woman, and deserves to be in prison, there should be special facilities that do not bring people of that sort into close proximity with women or—if they are in danger—with men.
The fact of the matter is that we are denigrating womanhood. Some time ago in this House, we debated the Bill to grant maternity leave to the Attorney-General—a perfectly laudable and reasonable thing to ask us to do. In that Bill, there was no mention of the words “mother” or “woman”—the person giving birth. Thanks to pressure from both sides of this House, there was a small advance. Rather than risk a defeat, the Government altered the wording of the Bill. That seemed an entirely reasonable outcome.
I hope that we can tackle this issue in a calm and moderate way. Its prime purpose is the defence of women and womanhood. Our mother has probably been the most important person in most of our lives. We are denigrating motherhood if we allow physically equipped males to cohabit in women’s prisons.
In her speech, the noble Baroness, Lady Fox of Buckley, referred to a remarkable young woman, Kate Coleman. She is a highly intelligent graduate who has had personal contact with a number of the real women who have suffered indignity, embarrassment and much worse by having physical males—who say that they are female—in women’s prisons. Everyone, regardless of his or her identity, deserves dignity. If special provisions have to be made for a group of trans people, so be it. Everyone particularly deserves that dignity at the most vulnerable moments of their lives. A woman in prison deserves it. A woman in hospital deserves it. We would be giving way to the slogan-mongers and the sort of people who terrorised that academic at Sussex University if we did not recognise that this is a real issue which deserves to be approached in a balanced, moderate, sensible way, recognising the physical difference between the sexes.
This is a probing amendment. It is not perfect. Very few amendments are. When my noble friend comes to reply, I hope he will indicate that the Government are prepared to talk to some of us who have these acute concerns, to see if some amendment can be fashioned for Report. This is a real problem which we must not ignore.

Lord Hunt of Kings Heath: My Lords, the late intervention by the noble Lord, Lord Cormack, was helpful in suggesting to the Minister that what I think we would all acknowledge is a complex, sensitive and controversial issue would benefit from a sensible roundtable discussion in which the Prison Service was open to some scrutiny. Part of the issue around gender, sex and identity in government as a whole is that policy has been developed mainly by officials who have come under the influence of certain groups, which Ministers have basically accepted and it has not been subjected to proper scrutiny.
My major appeal to the Minister tonight is to allow for that and to open up a dialogue in which those of us who are gender-critical are not accused of being transphobic or under the pay of alt-right American  organisations, something which, I am afraid, has all too often clouded the debate. I have an Oral Question tomorrow about Professor Kathleen Stock—a classic case of someone who has expressed quite legitimate views being subjected to horrendous abuse and basically left simply to put up with it herself; it was very late on that the university came her defence. There are so many examples of this, mainly affecting women. There is a lot of misogyny in this debate, and women are left defenceless by pathetic public bodies which are frightened to upset certain groups such as Stonewall. We know this—in how many government departments has policy been developed by officials, with Ministers having virtually no say?
My appeal to the Minister tonight is to take this seriously and to say there is a legitimate debate—not one in which we call each other names, but where we actually start to discuss these issues. It has never been allowed; there has been no real public debate or scrutiny in Parliament. These issues are so sensitive, and with every Bill that goes through, this debate will take place. We know that the Government are split on this, but they have got to get themselves together and start to have a proper dialogue. That is the appeal I make to the Minister.

Baroness Chakrabarti: My Lords, I am afraid it is not just the Government who are split on this. With two notable exceptions, rarely have so many noble Barons spoken with such passion and at such length for the dignity of women—and there is nothing wrong with late-flowering feminism. I say that quite sincerely to the noble Lord, Lord Blencathra, who I had the privilege of advising as a young lawyer in the Home Office some years ago now. There is nothing wrong with late-flowering feminism and, indeed, nothing wrong with speaking up for the dignity of all people. I say that as a self-identifying feminist and human rights campaigner.
The debate has ranged widely, which may be fine even at this late hour, but it has ranged beyond the specific issue. Noble Lords have brought up various issues to do with the lexicon and whether people feel that their dignity is lost, or that somehow their femaleness, or their womanhood, is challenged by newcomers, migrants to their sex, et cetera. To get back to the actual issue, life is complicated, prisons are vulnerable spaces and everybody in prison is inherently potentially threatening but also potentially vulnerable. I want to get back to the actual substance of this amendment and what it is trying to address. I say to the noble Lord, Lord Blencathra, that, if he and I were trapped in a lift with a third person—this is just a hypothetical, not an invitation, I promise—and the third person was a cis woman, born a woman, still a woman, always a woman, but none the less a white supremacist with previous convictions as long as your arm for violence against non-white women, I would feel much more threatened by the presence of that offender than by the presence of the noble Lord, Lord Blencathra. He is looking quizzical, but my point is that the Secretary of State has responsibilities to people in custody, in particular, and to people in vulnerable spaces that cannot be dealt with using the blunt instrument of an amendment like this.
I am not making nit-picking points. I am trying to address points that I think the noble Baroness, Lady Brinton, tried to make early on. Forgive me—it is no criticism, but some noble Lords responded subsequently with speeches which were understandably carefully prepared in advance, without the opportunity to hear her rather sensitive and thoughtful setting out of the way in which the Government to date are trying to address their administrative and serious human rights responsibilities to deal with all vulnerable people in prison.
I suggest to the noble Lord that in the hypothetical lift I would be at far greater risk from the white supremacist with previous convictions. This is not a total hypothetical, because this has happened in male prisons where non-white offenders have been murdered by fellow cis males—that being the term for people born and always a man—because of a lack of diligence about the offending and attitudinal profile of a person.
If we really care about people being safe in custody, which we must, this will not be resolved by a blunt instrument. This is not a drafting point or a nit-picking point. In my view, we have too many people—and I suggest too many women—in prison anyway, and we need to pay more attention to who is with whom and how we are taking care of them.
Something like this amendment, which says that your birth sex is always your sex for the purposes of imprisonment and incarceration, would mean that someone born a woman who then went through hormone therapy, possibly more interventionist therapies and even surgery would always be in a women’s prison. That would not necessarily always be the right outcome.
What I am trying to suggest is that, yes, I care about being a woman and, yes, I care about being a feminist, but I am a human first and foremost. I do not hate men. I do not fear all men. I am not a self-loathing cis woman. I believe that in this Committee, perhaps more than anywhere, we should be capable of taking some of the heat out of these sensitive issues, as I think we tried to do in an earlier—I called it historic—debate. Debates about the lexicon and wider dignity, important and heated though they are, will not make women safer and they will not make prisoners safer.

Baroness Meyer: We are talking about men who feel they are women but who have male genitalia being in a women’s prison. We are not talking about men who had operations. We are talking about men who, after being in a prison for several months, might have needs and could attack women. Some of those men are paedophiles and are violent.

Baroness Chakrabarti: I hear the noble Baroness, and I do not call her a late-flowering human rights spokesperson or feminist. I know that when she spoke on another Bill about parental alienation, she very clearly identified and recognised that people of both sexes were capable of this behaviour. Perhaps if she had had the opportunity to listen to the remarks of the noble Baroness, Lady Brinton, before she prepared hers—I make no criticism of that, because we all do it—she would recognise that the Government are already moving quite a long way to deal with these difficult administrative duties of care.
I believe that people of good will and good faith, as I consider this Committee to be, can deal with this without using some of the language that—forgive me— some noble Lords have used repeatedly. Repeatedly calling people one sex even though it is very important to them to be another does not help. This place—this Committee and your Lordships’ House—should not be a place of culture war. This should be a place where we make difficult things a little bit easier because of rational thought and the respect that we pay each other and therefore everyone else.

Baroness Fox of Buckley: I want to respond to that because I think another point that follows from what the noble Lord, Lord Hunt, said is that the other argument that comes up all the time is that if you raise these issues you want a culture war, which I think the noble Baroness, Lady Chakrabarti, was implying.
On terminology, if we are all going to get offended, I do not particularly find descriptions of people as “cis” very helpful either, so when it comes to language issues, the point is that there are tensions that exist outside this place. We know that and it is disingenuous to pretend that there are not.
The noble Baroness rightly pointed out that this is a question of administrative duties of care. This amendment has been very carefully worded in a very narrow way about a very specific issue. What is the objection to that? This is precisely a responsible administrative duty of care, regardless of any hyperbole that people do not like other people using even when they use it.

Baroness Chakrabarti: I thank the noble Baroness for that intervention. If I offended her in any way by my remarks—

Baroness Fox of Buckley: Not me.

Baroness Chakrabarti: —I apologise. Clearly one of the reasons this is so sensitive is that, beyond this Committee and this Chamber, there is not yet even a settled courtesy about some of these matters. If I have offended any Member of the Committee, I apologise.
I was born a woman, and I still identify as a woman, but I have always tried to disagree well with people, including those on the Benches opposite, who I disagree with across the piece. I have never seen all men as a threat, and I have certainly never seen people of other races, sexualities or sex as a threat, and I am not calling anybody names in this debate.

Lord Hunt of Kings Heath: My Lords, this is an important debate. I think I am perfectly entitled to intervene; I do not see why I cannot. I agree with a lot of what my noble friend said about the tone of the debate. My problem is the accusation of transphobia.

Baroness Chakrabarti: But I did not make it.

Lord Hunt of Kings Heath: No, my noble friend did not make it, but it is made by many people. Those who are perhaps arguing from my noble friend’s point of view never defend people such as Kathleen Stock  when they suffer such abuse. I welcome this debate, which is why I intervened, because, frankly, it is very helpful to try to set a place here. I agree with my noble friend that the Lords is, above all else, a place where we can start to have some reasoned discussion, but there are huge tensions and sensitivities on both sides. I must come back to the Minister: the fact is—

Baroness Chakrabarti: My noble friend is intervening on me.

Lord Hunt of Kings Heath: That is very true. My noble friend is right. I will take that and ask her to respond to me.

Baroness Chakrabarti: I am grateful for that. Forgive me, again, if I have called anybody names. That has not been my intention. This is difficult terrain. The path of human rights does not run smooth and there are all sorts of difficult issues to be dealt with. There are some people beyond this Committee and your Lordships’ House who seek to set people against each other. The focus of this legislation, and your Lordships’ focus in this Committee, should be to ensure the safety of vulnerable people in prison, whatever sex they were born and whatever sex they now identify as. I was trying to suggest that that is not just about biology. It is also to do with criminality, profile, attitude and so on. I believe we have too many people in prison and that we therefore have too many women in prison.
I would defend academic freedom and debate, by the way. Forgive me if I have not been seen to do so. I believe that my record on free speech matters is decent enough. I urge noble Lords to send a signal to the wider world that, in this place at least, we can disagree well and focus on protecting all vulnerable people in prison.

Baroness Falkner of Margravine: My Lords, I declare an interest as chair of the Equality and Human Rights Commission. As most noble Lords will know, we are the body charged with protecting the protected characteristic of sex as well as that of gender reassignment and the fundamentally important human right of freedom of expression. All those things have been discussed today relatively calmly, on the whole. On debating well, I start from first principles and say that we should never try to close down debate—and yes, we should debate well.
I thank the noble Lords, Lord Blencathra, Lord Morrow and Lord Farmer, and the noble Baroness, Lady Meyer, for proposing this amendment, which basically seeks to ensure that female prisoners are protected from harm. This is a complex area, where the rights of trans women prisoners to have their legal sex recognised has to be balanced with those of female prisoners, who may be fearful of attack, if they know that a dangerous sex offender with male anatomy is housed with them, for example. The important point is that, when you are incarcerated and do not have the liberty to leave a place of danger, the state’s duty to look after you is profound. You do not have the choices that other people have.
The noble Lords and noble Baroness have proposed that prisoners with a gender recognition certificate who are suspected or convicted of a “violent or sexual offence” are treated
“by reference to the sex registered at their birth.”
I understand the intent behind this amendment, which is essentially to secure the safety of natal women. However, it raises some issues that require further thought—for example, the risk of violence towards trans women prisoners housed in a male prison as well as to trans men in a female prison. I urge noble Lords not to frame this serious and complex issue either in a numbers game—are there very few or not so few?—or in what may or may not be our personal outlook, if we find ourselves in that position. The law is frequently a straitjacket, and it is not sufficiently malleable to accommodate the complexity of identities around us.
At the heart of this issue is the need to protect female prisoners and ensure that they have access to single-sex spaces, including bathrooms, sleeping accommodation and other areas that they need. Violent and sexual offenders are a threat to their fellow inmates, regardless of their sex or gender identity. Cases of assault sadly already happen in single-sex prisons. However, in the case of trans prisoners who may be violent or who may have committed crimes involving sexual assault, it is right that we now need to give additional thought to how they are housed. As it stands, the law stands calls for these decisions to be made on a case-by-case basis. While this will be right in many situations, it may also raise the question of how female prisoners can have confidence in their ability to safely access spaces such as toilets within the prison, precisely because they cannot know the outcome of a case-by-case assessment, as opposed to the generality of a law that exists for them. Further thought needs to be given to the facilities provided to trans people and whether provision can be expanded for trans people that ensures that all sides of that debate can be safe and secure within the prison estate.
A further problem with the amendment is that, oddly, it is too narrow and does not capture the issue of trans men or trans women who do not have a gender recognition certificate but, nevertheless, self-identify in the gender and can therefore apply and be granted a place in the relevant prison estate. I do not think the noble Lords who put down the amendment intended for it to be quite so narrow—certainly their speeches do not reflect the narrowness of the written words. These are not straightforward issues, and it is right that we properly consider the balance of rights of different prisoners. I do not believe that the amendment gets that balance right, but it does ask serious and important questions that need to be addressed in law.
If the Minister is minded to pursue these arguments through Report, I ask that he give extremely serious consideration to the importance of getting the balance of rights correct and ensuring that all prisoners have the duty of the state to safeguard them upheld as we go forward.

Baroness Butler-Sloss: My Lords, I had not intended to speak, but I would like to support what the noble Baroness, Lady Falkner, has just said. There are two groups of people who need support. I agree with her that the well-intentioned amendment of the noble Lord, Lord Blencathra, does not actually meet the problem. These two groups are the women who are women at birth and remain women, and those who were men at birth and become women. Both groups, even in prison, need respect for who they are and what has  happened to them. I do not think that the prison system is well adapted at the moment to deal with trans women, and the Minister needs to think with some care whether rather more should be done to help that group of women.
However, the help for that group of women should not be at the expense—I venture into dangerous ground —of those who remain women. This is an extremely tricky area, and we know from areas outside the prison system just how tricky is it. I do not envy the Minister or the Ministry of Justice the situation in which they find themselves because this did not exist—as far as we knew—even 10 or 20 years ago but, my goodness me, it exists now. There are two groups, both of whom need not only respect, but understanding and care, even within a prison.

Lord Paddick: My Lords, I have been engaged in the debate on trans issues for many years and I have the scars to prove it. I have even been criticised for simply engaging in the debate, by some trans people for even listening to radical feminists, and by feminists because I am not a woman. I have met with, listened to, and talked with many people on all sides of these issues, including radical feminists, gender-critical people, trans people and intersex people. I continue to listen, and I continue to try to understand the views expressed by all sides.
I can feel my blood pressure rising when I hear the comments of many noble Lords around the Chamber. Then I think for a while, and I think to myself that it was not that long ago that I perhaps held similar views until I actually started talking to the people whose lives we are talking about—people who honestly and genuinely believe that they are in the wrong body, if you like, and those who genuinely believe that they are women even though they have male bodies, for example. That is when you begin to understand that these things, which appear completely counterintuitive, make sense for those people. I do not condemn people for what they have said because it was not that long ago that I might have thought along similar lines.

Baroness Fox of Buckley: Can I just clarify one thing? Many trans people do not agree with some of the orthodoxies that have become associated with trans activism. The inference was that some people possibly have a particular view because they have not met any trans people. That is not true. Whole swathes of trans people do not go along with a particular political opinion, for example in relation to prisons, as in this instance. I am concerned that it is not seen that those people who argue a gender-critical view are doing it because they are ignorant and have not got out enough.

Lord Paddick: I hear and understand what the noble Baroness says. However, on this amendment, I am clear. We oppose Amendment 214 from the Front Bench. We do not support the noble Lord’s amendment, but we understand completely the concerns that he and other noble Lords have. However, we feel that the risks that the noble Lord seeks to minimise are already minimal, and that other risks that need to be managed are not covered by this amendment.
The amendment seeks to amend the Gender Recognition Act to reduce the risk that transgender prisoners present to others. This is neither necessary nor desirable for the following reasons. First, there are very few transgender prisoners. In a data collection exercise between March and May 2018, only 44 of 124 public and private prisons said that they had any transgender prisoners at all. The fact that there are so few transgender people in prison is also an indication of the level of offending by transgender people, the seriousness of that offending and the extent of the threat that they pose.
Secondly, the risk of mental health problems, self-harm and suicide is far greater among the transgender community than it is among those who are not transgender. Clearly, in a prison setting, the risk of mental health problems, self-harm and suicide is likely to be higher for all inmates; for transgender prisoners, it is likely to be very high indeed. In November 2015, an inmate who said that she would kill herself if she was sent to a male jail was found dead. Vicky Thompson, aged 21, died a week ago at the all-male HMP Leeds. Friends said that Thompson, who was born male but had identified as a woman since she was a teenager, had asked to be sent to a female jail in Wakefield. This is the sort of impact that having an unbalanced amendment, such as the one proposed by the noble Lord, Lord Blencathra, can have on transgender people.
Thirdly, if the Prison Service thinks that the risk presented by a transgender prisoner is such that they should be housed in a prison contrary to their legal gender, it can allocate them to a part of the estate that does not match their legally recognised gender. The decision must be taken after consultation with experts and at a high level, but it is possible.
A number of noble Lords have referred to the High Court judgment in July 2021, where lawyers for a female inmate in the female prison estate brought a judicial review against the MoJ. The MoJ argued that the policy pursues a legitimate aim, including
“facilitating the rights of transgender people to live in and as their acquired gender (and) protecting transgender people’s mental and physical health.”
It is interesting that I am actually quoting from the same case as other noble Lords have quoted from. Lord Justice Holroyde said:
“It is not possible to argue that the defendant should have excluded from women’s prisons all transgender women”—
as this amendment proposes. He continued:
“To do so would be to ignore, impermissibly, the rights of transgender women to live in their chosen gender.”
The case was not actually about excluding all transgender women; it was about challenging how policies applied to those who had been convicted of serious or violent offences against women—as the noble Lord’s amendment does.
The Lord Justice went on to say that trans women’s offending history was a factor that the existing policies were required to consider. He said:
“the need to assess and manage all risks is repeatedly emphasised”
throughout existing MoJ policies. He continued:
“In an exceptional case, a high risk transgender woman, even with a GRC, can be transferred to the male estate because of the higher level of security which is there available.”
Therefore, there is a mechanism to do exactly what the amendment is seeking to do, but on a risk-assessed basis.
The court also heard that expert panels are also involved in the process when allocating transgender prisoners and are “expressly required” to consider the trans woman’s offending history, her anatomy and her sexual behaviours and relationships. The Lord Justice said:
“They can in my view be expected to be astute to detect any case of a male prisoner who, for sinister reasons, is merely pretending to wish to live in the female gender.”
He concluded:
“the policies require a careful, case-by-case assessment of the risks and of the ways in which the risks should be managed. Properly applied, that assessment has the result that non-transgender prisoners only have contact with transgender prisoners when it is safe for them to do so.”
This is the same case that noble Lords have been quoting from.
Yes, the Lord Justice said:
“I readily accept that a substantial proportion of women prisoners have been the victims of sexual assaults and/or domestic violence.”
He added that some women prisoners,
“may suffer fear and acute anxiety if required to share prison accommodation and facilities with a transgender woman who has male genitalia, and that their fear and anxiety may be increased if that transgender woman has been convicted of sexual or violent offences against women.”
This amendment says nothing about whether the person has had sex-reassignment surgery, and there are trans women with gender recognition certificates who have not undergone gender reassignment surgery. The amendment, therefore, is not fit for purpose.
There are two sorts of risk that need to be managed here. There are the risks to the transgender prisoner, either from themselves, in terms of mental health, self-harm and suicide, or the risk from other prisoners, such as the risk of a transphobic attack or an attack based on their acquired gender if they present as a woman in a prison housing men, for example. There may be risks that the transgender person poses, perhaps because of a previous history of violence or sexual offences, but those falling into this category are few and far between and can be dealt with under the law as it stands. Any attempt to stereotype all transgender women as a threat to women flies in the face of the facts and needs to be robustly challenged.
The implication that transgender women are a threat to children reminds me of the sort of abuse that was directed towards me as a gay man a few decades ago.

Lord Blencathra: The noble Lord is looking at me and implying that I suggested that transgender men were a threat to children. I said no such thing at all. I quoted the case of a male rapist who had raped two children. I was not suggesting that this was endemic in the transgender community, or that they are a threat to children at all. That is not what I said, not what I implied, not what I intended.

Lord Paddick: I am grateful for the clarification that the noble Lord has given, and I will allow noble Lords to read the official record and draw their own conclusions from what he said.
The noble Lord’s amendment manages only one of these risks—arguably the much lower risk. Each case should be, and is currently, managed on a case-by-case basis, and that should continue. We oppose the amendment.

Lord Falconer of Thoroton: We, too, oppose the amendment. I think we all accept that transgender women are entitled to live in their chosen gender. The law protects transgender women and transgender men from discrimination because they are transgender men or transgender women. The position that is outlined in this amendment leads all transgender women to be consigned to the male prison estate—a point made very forcibly by the noble Lord, Lord Pannick. The moment one says that, one sees the total unthought-out nature of the amendment.
The way forward was, I believe, charted by the noble Lord, Lord Pannick, and the noble Baronesses, Lady Falkner and Lady Brinton. The noble Baroness, Lady Falkner, indicated in a powerful speech that one is dealing, in effect, with rights that may conflict: on the one hand, the right of a transgender woman to be properly protected, including in her choice to be a transgender woman, and on the other, the possibility that certain prisoners, including transgender women, can be a threat to other prisoners in the women’s estate. The way that that is dealt with at the moment was well outlined by the noble Baroness, Lady Brinton, in her excellent and detailed speech. The prison authorities deal with it on a case-by-case basis using a series of detailed processes. Should we continue with that, or should we condemn every gender recognition-certificated transgender woman who is charged—maybe not convicted —of a violent or sexual offence to being in the male estate?
For my own part, it is pretty obvious that one should continue with the current arrangements. I am sure that they could be improved—I am not in a position to detail any improvements that could be given to them—but that case-by-case basis must be a better approach than that adopted by the amendment in the name of the noble Lord, Lord Blencathra. I would go further and say that I do not suggest to the noble Lord and those who have also supported the amendment that they come back with something else. This is much better dealt with on a case-by-case basis, so we on this side of the House oppose the amendment. We do not think it is appropriate; we do not think it even tries to balance rights, and we would not support it coming back on Report.

Lord Wolfson of Tredegar: My Lords, having heard the noble Lord, Lord Paddick, perhaps I can begin with two confessions. First, I frequently listen to and discuss issues with people with whom I firmly disagree including, on occasion, Members of your Lordships’ House. Secondly, I do not propose to change that approach.
This amendment from the noble Lord, Lord Blencathra, relates to the management of prisoners who have changed their legal gender by obtaining a GRC—a gender recognition certificate. The effect of  the amendment would be that a prisoner with a GRC who is convicted of or on remand for a violent or sexual offence would be, and would have to be, held in a prison matching their sex at birth.
I assure the noble Lord, Lord Hunt of Kings Heath, that I and the MoJ take this issue very seriously but, and with no disrespect to any noble Lord whose speech has ranged more widely, we are in Committee on this Bill. I shall confine my remarks to the subject matter of the amendment rather than the broader questions, whether on Stonewall or related topics, interesting and thought-provoking though they were. The Committee will be aware that the MoJ left the Stonewall diversity scheme in June this year, but I reiterate the department’s commitment to diversity in all its diverse forms. Our policy is not driven by ideology; it is driven by compliance with the law of the land and to consider protection for all—I repeat all—the prisoners in our care.
Reference has been made to the 39-page policy. Let me just read what the section under “Outcomes” says:
“The high-level outcomes of the new Policy Framework are intended to strike an appropriate balance, ensuring”
first that:
“All transgender individuals are managed safely with their rights properly respected and in accordance with the law”
and, secondly:
“Decisions are informed by all available evidence and intelligence in order to achieve an outcome that balances risks and promotes the safety of all individuals in custodial settings and approved premises. This includes an assessment of risks presented to and by transgender individuals.”
The Committee will have noted the two references to balance in that section, as pointed out by the noble Baroness, Lady Falkner of Margravine. As the noble and learned Baroness, Lady Butler-Sloss, pointed out, two groups—perhaps at least two, I would say—need respect and understanding in prison. I suggest to the Committee that that policy is correct in law and, I believe, in principle too. With all due deference to my noble friend Lord Cormack, I suggest that it is morally correct as well.
This is about legality, safety and dignity, so in answer to the point put to the Committee by the noble Baroness, Lady Fox of Buckley, no: the world has not gone mad and it is a gross mischaracterisation of government policy to suggest that I or the Government have “no qualms” about letting rapists share living quarters with women. I assume that point was put because the noble Baroness does not understand what the policy is, so let me explain the actual policy to her and to the Committee.
The policy is that transgender prisoners are allocated to a prison matching their legal gender but can be held in a prison opposite to their legal gender where they would otherwise present an unmanageable level of risk to other prisoners. The current policy therefore allows for prisoners with GRCs to be held in a prison matching their sex at birth, where that is appropriate. I can therefore confirm, because I have had this checked, that contrary to the position set out by the noble Lord, Lord Blencathra, there are trans women with GRCs who are now housed in the male estate following the risk assessment process.
The critical point, as pointed out first, I think, by the noble Lord, Lord Pannick, and then adopted by others, is that that policy differs from that suggested by the amendment because the current policy is not a blanket approach. The amendment is a one-size-fits-all approach, or a blunt instrument, as I think the noble Baroness, Lady Chakrabarti, put it. We manage prisoners with GRCs on a case-by-case basis. That is absolutely right, because we want to make sure that there are no assaults in any prison by any prisoner on any other prisoner or, of course, on a member of staff.
The amendment would end the balanced approach. It would mean that a prisoner with a GRC would never be held in the part of the prison estate that matched their acquired gender, even though in some cases this would pose a manageable level of risk and would, on balance, be the safest and most appropriate course of action. It would lead to a prisoner with a GRC having to be kept in a prison that matched their sex at birth, even when that posed an unmanageable level of risk, which would be an utterly bizarre conclusion. It would mean, for example, that a prisoner who had transitioned from female to male and had obtained a GRC would be kept in a women’s prison, even if that posed an unmanageable level of risk to the women they were in prison with. We are very conscious, as my noble friend Lady Meyer pointed out, that women in prison are especially vulnerable. This amendment, I am sure unintentionally, might expose them to greater danger.
It is simply not possible to argue that holding transgender prisoners with GRCs in a prison matching their sex at birth is always necessary and proportionate in every instance. By far the better policy is the policy we adopt, which is to look at matters on a case-by-case basis. I also point out that the amendment applies only to prisoners with GRCs, which most transgender prisoners do not have.
Before I sit down, I will pick up two further points—first, the point from my noble friend Lady Meyer on Amendment 292G. I see that my noble friend Lady Williams of Trafford has come into the Chamber. I think that she or another member of the Home Office team will have the delight of dealing with that amendment on a future occasion and I do not want to steal her thunder on that this evening.
My noble friend Lord Cormack and the noble Lord, Lord Hunt of Kings Heath, said “talk to us”. I started by saying that I am always happy to talk to everyone, and I mean that. However, on this issue, when the most important information to provide is how the policy is operated, I suggest with respect to noble Lords that perhaps the best way forward might be to replicate something we did on the Domestic Abuse Bill and have what I think I called a teach-in from officials, who will be able to provide noble Lords with information and explain how it works. I have been able to check and they would be very happy to do that. We will arrange that in the normal way.
With that explanation of government policy and the offer of the teach-in, I invite the noble Lord to withdraw the amendment.

Lord Blencathra: My Lords, it is customary for every Peer who has moved an amendment to say that it has been a worthwhile debate. I genuinely think it has been a worthwhile debate because, as the noble Lord, Lord Hunt of Kings Heath, said, this subject has not been properly debated in this House or in Parliament before. It is a policy invented by officials that past Ministers have signed off on. It is certainly worthy of debate.
I say to the noble Baroness, Lady Chakrabarti, that the reason so many men spoke is that so many noble Baronesses who normally sit behind her are afraid to speak on this issue. They have spoken to me privately, as have some on the Lib Dem Benches and the Cross Benches, and said, “Please raise this issue; we dare not speak out.” That is not right. It should be possible for noble Baronesses on all sides to raise this issue of women’s rights.
In some ways there has been a certain degree of consensus on three issues. There is agreement that, first, the rights of transgender prisoners must be protected; secondly, that the rights of women prisoners must be protected; and thirdly, that my amendment is a blunt instrument that fails in certain aspects and, as the noble and learned Lord, Lord Falconer, said, that I ought not to bring it back on Report. I think that, with proper discussion, I will need to bring back a radically revised amendment on Report. I thank the noble Lord, Lord Hunt of Kings Heath, the noble and learned Lord, Lord Falconer, my noble friend Lord Cormack and the noble Baroness, Lady Falkner of Margravine, for suggesting that we need to get the balance of rights correct.
The noble Baroness, Lady Brinton, said that the numbers are small, but I dismiss the view that because the numbers are small this does not matter so much. The number of transgender women in prison may be small, but the fear they create in the women’s estate is quite considerable. This is about not just the number of attacks that have happened but the fear women have of being attacked. Their rights need to be defended too. I would welcome dialogue with the Minister, my noble friends and noble Lords opposite on getting that balance right.
Since the numbers are small, why can we not have special units for men who identify as women so that they are not, as the noble Lord, Lord Pannick, rightly pointed out, forced into the male estate where they would be victims of violence in some cases, or into the women’s estate where women fear, rightly or wrongly, that they will be attacked? Since we already have some specialist units, can we not have units for men who identify as women so that they can have their own accommodation with their own like kind, people who also want to identify as women?
I urge the noble Lord, Lord Paddick, to read what I said very carefully. I did not accuse transgender women of being a threat to women or children. I quoted the case of one man who was a rapist and raped children and who, after he went to prison, decided that he wanted a GRC and to identify as a woman. That is a totally different case from what the noble Lord inadvertently suggested I said.
On this occasion, I intend to withdraw this amendment, but I would like to pick this up with the Minister, the noble Lord, Lord Hunt, my noble friend Lord Cormack and possibly the noble Baroness, Lady Falkner of Margravine, if she is permitted to do so, and discuss an amendment which would try to get the balance of rights right, so that we protect women and transgender women and so that each can feel safe in their own prison space. With those words, I beg leave to withdraw the amendment.
Amendment 214 withdrawn.

Amendment 214A

Baroness Brinton: Moved by Baroness Brinton
214A: After Clause 124, insert the following new Clause—“Home detention curfews(1) The Home Detention Curfew policy framework is amended as follows.(2) In paragraph 4.3.1 at the appropriate place insert—“Offenders who have previously breached a protective order”.(3) In paragraph 4.3.5 at the appropriate place insert—“Anyone with a history of offences relating to stalking, harassment, coercive control or domestic abuse”.”Member’s explanatory statementThis amendment would exclude offenders who have previously breached a protective order and those with a history of offences relating to stalking, harassment, coercive control or domestic abuse, from the Home Detention Curfew policy framework.

Baroness Brinton: My Lords, I have laid Amendment 214A and I thank the noble Lord, Lord Ponsonby of Shulbrede, and the noble Baroness, Lady Newlove, for also signing it.
The home detention curfew is a valuable and worthwhile scheme, allowing offenders to be released from prison to a suitable address and allowing for a smoother transition back into society. There are, however, a number of violent and sexual offences which rightly cannot be considered under this scheme, due to the risk the offender poses to the victim. This amendment seeks to expand the list of ineligible offences to include those which relate to ongoing harm or risk to a particular individual and which are not already excluded from the scheme. These offences include stalking, harassment, coercive control and domestic abuse.
The Minister knows from the many amendments that were tabled during the passage of the Domestic Abuse Bill and other Bills before it that in cases where perpetrators are fixated and obsessed, by the time they are convicted, many will have either a restraining order or another protective order in place. This amendment says that the home detention curfew should also not be considered in cases where such a restraining order or other protective order has already been breached.
The Government have described a key objective of this Bill as follows:
“We are changing release arrangements for serious violent and sex offenders, as well as for those whose risk to the public increases during their time in custody, so that they serve longer in prison.
These changes have the protection of the public at their core and ensure a firm but fair justice system.”
The victims of stalking, harassment, coercive control and domestic abuse, where the perpetrator has had a protective order made against them, often report that  their perpetrator continues to try to control them, whether directly or indirectly, including from prison, sometimes without prison officials being aware.
One example is not untypical of the kind of perpetrator we believe should not be eligible for HDCs. The woman, who wishes to be anonymous, has been a victim of domestic abuse by her ex-husband and has been granted multiple restraining orders for her own protection since divorcing him. He was convicted in 2017 for breaching an order and in 2019 for two breaches of another order, and then faced trial for eight breaches of a third order as well as numerous counts of stalking against her, her partner and her family. This shows a clear history of breaching protective orders—over 10 times—and the victim is currently on her fourth restraining order.
In 2020 the ex-husband was convicted of stalking and sentenced to a two-year custodial sentence. However, the victim was shocked to find out that he could apply for a home detention curfew in January 2022, having served only six months of his sentence—that is, just under one-quarter. Understandably, given the history, she has been very concerned about her safety. Given the perpetrator’s history of breaching orders, she has little faith in his compliance with home detention curfews or in the police responding if he does fail to comply. There is no way of blocking his application despite his record.
The Minister said in reply to the last amendment that risk and safety were critical. Ministers have made it clear that tackling violence against women and girls is very much at the heart of this government strategy. We know that some of these particularly fixated perpetrators are highly likely to go on to reoffend, are likely to already have had protective orders and, the amendment says, must have already breached those orders—so, frankly, HDC is not an appropriate choice here. By not excluding stalking and the other offences that I have outlined, those most at risk—their victims—are most at risk of further harm.
I want to be clear that it is the obsessive behaviours demonstrated by breaching protective orders given by the courts that would act as the trigger to exclude from the HDC. The amendment seeks to ensure that, in the Government’s own words on this Bill:
“These changes have the protection of the public at their core and ensure a firm but fair justice system.”

Baroness Newlove: My Lords, I am pleased to add my name to Amendment 214A, along with the noble Baroness, Lady Brinton, and the noble Lord, Lord Ponsonby, because we care about protecting vulnerable victims of crime from harm and repeat victimisation.
Home detention curfew, or HDC, is a valuable scheme allowing certain offenders to be released early from their custodial sentence if they have a suitable address to go to. We all recognise the value that this brings in providing a managed way of releasing offenders back into the community. However, there are, rightly, a number of exclusions to eligibility for the scheme based upon the offender’s history of compliance as  well as the offences for which they have been convicted. For example, sex offenders required to register, those sentenced for breach of curfew and those serving sentences for cruelty to children or racially aggravated offences are ineligible for HDC. These are just some of the criteria that currently can preclude someone. I believe, as do some colleagues around the Chamber with whom I speak, that the safety of the victim and the risk presented to them by the offender are of the utmost importance when considering suitability for release under HDC.
Amendment 214A seeks to add two new criteria to the framework governing home detention curfews: first, that offenders who have previously breached protective orders such as restraining orders are deemed ineligible; secondly, that those with a history of offences related to stalking, harassment, coercive control and domestic abuse are also deemed ineligible. Victims of these crimes are at high risk of repeat victimisation and are in desperate need of respite from their abuse to help them recover. Under HDC, that respite can be as little as 28 days, allowing no time to address the behaviours that characterise these offences.
Fifty-five per cent of stalking perpetrators go on to reoffend because of the fixated and obsessive nature that defines stalking, as the noble Baroness, Lady Brinton, has just said. Therefore, granting HDC in stalking cases is highly inappropriate and of grave concern, as these offenders regularly breach orders and bail conditions. Home detention curfew for these offenders poses a significant risk, catching victims as they let down their guard. To see an offender released so quickly can be highly distressing, retraumatising and risky; and it impacts trust and confidence in our justice system.
HDC can allow offenders to leave prison so quickly that the victim is entirely unaware. I am aware of multiple cases where a victim has been harassed by an offender following release on HDC, including the victim of a brutal assault, whose father told me what happened: “My daughter was convinced she saw the perpetrator within yards of her new flat. She had to walk around him on the pavement. I assured her that this couldn’t be possible, even with only serving half his sentence. Nevertheless, I checked with the prosecuting officer. He knew nothing of any early release, nor had the police been consulted. In fact, we discovered to our horror that my daughter’s assailant had been released barely three months into his sentence.”
This woman saw the man who assaulted her just yards from her new address—an address she moved to for safety, which was secret for a reason. Her father told me of the enormous distress and anxiety this caused as she relived her assault and felt constantly in fear. In this instance, she had signed up for the victim contact scheme, but a HDC decision had been made before she had been allocated a victim liaison officer contact. As such, the decision was made without any opportunity to input licence conditions and set an exclusion zone for her offender, or for her to contribute in any way by raising highly relevant issues. The relevant issues included the fact that the offender had been given a 10-year restraining order—an unusual intervention signalling the judge’s belief that he posed an ongoing risk. Relevant issues such as that he had previously contacted the  victim on bail, showing that he had a history of not complying with orders, should have raised red flags and, under this amendment, would have precluded him from HDC.
The use of home detention curfews in these contexts presents an ongoing problem. If the nature of the offence relates to ongoing harm or risk to a particular individual, as detailed in this amendment, HDC should not be considered a suitable intervention. Those are the words of a father who is so worried for his daughter.
I know it is drawing late, but I would like to thank the London Victims’ Commissioner, Claire Waxman, and her office for bringing these concerning cases to my attention. We need to protect our vulnerable victims of crime.

Lord Ponsonby of Shulbrede: My Lords, my name is on this amendment as well. I have the same briefing as the noble Baronesses, Lady Brinton and Lady Newlove, so I do not have anything additional to say, other than that obsessional behaviour is a problem that one sees throughout the court system. While of course I support home detention curfews, it needs to be recognised that obsessional, fixated behaviour is a source of very serious risk—mainly to women, but not exclusively to women. I have seen, relatively recently, obsessional people in breach of a restraining order, a non-molestation order, bail conditions and licence conditions all at the same time. So I support the amendment in my name.

Lord Wolfson of Tredegar: My Lords, I am grateful to the noble Baroness, Lady Brinton, twice over. First, I thank her for tabling this amendment, which has enabled us to have this short but interesting debate. Secondly, I have to say mea culpa, because I failed to thank her for her contribution in the last group. I should have done so and I apologise for that. I hope that she will be able to hear what I am saying now, via the screen.
The home detention curfew—HDC—scheme has operated since 1999. It provides a managed transition from custody to the community for lower-risk offenders who serve sentences of less than four years. They may be released a maximum of four and a half months earlier than the date on which they must be released in any event, but on average they are released on HDC within three months of their automatic release date.
Offenders who are released under the HDC scheme are released under strict licence conditions. An electronically monitored curfew of at least nine hours a day is mandatory. Location monitoring may be added in cases where practitioners advise that it is required. Importantly, research suggests that offenders released early on HDC are no more likely to commit further offences than if they were released at their automatic release date. Compliance with the curfew conditions is closely monitored and breaches are dealt with robustly, which can lead to a swift recall to prison where necessary.
As my noble friend Lady Newlove pointed out, certain offenders are excluded in law from HDC. They include registered sex offenders, terrorists and those imprisoned for specified violent offences. But, as I have said, most offenders serving sentences of less  than four years are eligible for the scheme. I underline the word “eligible”. The fact that a particular offender is, in principle, eligible, does not mean that that offender is suitable for release under the scheme. As the noble Lord, Lord Ponsonby of Shulbrede, has just said, offenders can, for example, exhibit obsessional behaviour. No offender can be approved for release on HDC without a robust risk-management plan in place. Where necessary, the governor can set additional licence conditions that can include exclusion zones or location monitoring. If the result of the assessment is that the offender cannot be safely managed at the proposed curfew address, HDC will simply not be granted.
We recognise that the release of offenders with a history of stalking, harassment, coercive control or domestic abuse can cause additional distress. We do not believe that adding those offences to the list of offences excluded by law and putting a blanket ban in place would be proportionate, or an effective means of safeguarding victims while maximising the benefits of the scheme. But we are currently reviewing the HDC policy framework to ensure that all the appropriate safeguards are in place to protect victims and the public and that unsuitable offenders are not released on HDC. With these reassurances and for these reasons, I urge the noble Baroness to withdraw this amendment.

Baroness Brinton: I thank noble Lords for their contributions to this brief debate. The noble Baroness, Lady Newlove, spoke powerfully of the practical impact on victims of these fixated offenders after HDC has happened. I echo her thanks to Claire Waxman and her staff at the London Victims’ Commissioner’s office for their briefing and their assistance.
The noble Lord, Lord Ponsonby, helpfully reiterated the fixated behaviour of these offenders and how it is in their nature to breach orders. All the examples that the three of us have given show that they are likely to do so—and to do so repeatedly.
I thank the Minister for his kind comments about my contributions on both this and the previous amendment, but I understand that stalking, domestic abuse and coercive control are not lower-risk offences. We already know that stalking offenders in particular, but not solely, often do not comply with orders and reject treatment, providing a problem for their victims. We still believe that this puts the victims at risk of further harm and pressure if their perpetrators are allowed to have HDCs. Therefore, will the Minister agree to meet with me, the noble Baroness, Lady Newlove, and the noble Lord, Lord Ponsonby, to discuss this between now and Report? In the meantime, I beg leave to withdraw the amendment.
Amendment 214A withdrawn.
Clauses 125 to 128 agreed.
Schedule 12 agreed.
Clause 129 agreed.

  
Schedule 13: Community and suspended sentence orders: special procedures relating to review and breach
  

Amendment 214B not moved.
Schedule 13 agreed.
Clause 130 agreed.
Schedule 14 agreed.
Clause 131 agreed.
Amendments 215 to 218 not moved.

Amendment 219

Baroness Newlove: Moved by Baroness Newlove
219: After Clause 131, insert the following new Clause—“Aggravation of offences on grounds of hostility related to sex or gender(1) Section 66 of the Sentencing Code is amended as follows.(2) After subsection (1)(e) insert—“(f) hostility related to sex or gender”.(3) After subsection (4)(a)(v) insert—“(vi) the sex or gender (or presumed sex or gender) of the victim, or”.(4) After subsection (4)(b)(v) insert—“(vi) hostility towards persons who are of a particular sex or gender.””

Baroness Newlove: My Lords, the murders of Sarah Everard, Bibaa Henry and Nicole Smallman earlier this year shocked the entire country, and rightly so. Yet we know that these cases are not an exception. In the seven months after Sarah Everard’s death, another 81 women were killed, and countless more were subjected to sexual violence, abuse and harassment.
We repeatedly hear from the police that women do not come forward to report crimes—yet the evidence shows that they are right to be concerned that the violence and abuse they face often do not result in criminal sanction. A UN Women UK survey in January 2021 showed that 80% of women of all ages said that they had experienced sexual harassment in public spaces. Some 96% of respondents did not report this, with 45% saying that it would not change anything. In March this year, HOPE not hate published figures showing that 85,000 women are raped each year, but only 1.4% of rape cases in England and Wales that had been recorded by the police ended with the suspect being charged. This is the lowest figure ever recorded. We know from the Office for National Statistics that more than 2 million crimes against women have gone unreported since 2018.
Today I am proposing Amendment 219 so we can learn from police best practice in tackling this epidemic of violence and restore confidence that the police get the seriousness and scale of the problem. In 2016, Nottinghamshire Police, under the leadership of Sue Fish, became the first police force in the country where women and girls could report a case of abuse and harassment and have it treated as what it is: a hate crime. Over 11 police forces follow this approach, including north Yorkshire, Avon and Somerset and Northamptonshire.
I want to take on some of the myths. First, Amendment 219 does not create any new offences. It is about recognising the causes of existing offences and how serious this is for society. Secondly, this is not about catcalling; street harassment is already illegal. We rightly do not accept casual racism in our streets. Why should we accept those who try to intimidate or exercise power over women by screaming abuse at them? Talking about this as being about wolf whistling minimises the experiences women have. In Nottingham, women came forward to report stalking, groping, indecent assault and kidnapping, knowing police would take these matters seriously and see how women have been targeted. Independent research showed that this improved victims’ confidence to come forward and changed the culture in the police towards understanding the causes of violence against women. Reporting crimes increased by a quarter, giving police the crucial information they needed to identify repeat offenders. We know that many offenders graduate from apparently minor offences, such as harassment, to more serious ones. This policy helps the detection and prevention of these crimes by repeat offenders.
Thirdly, this is not just about data; it is about how we treat violence against women and girls. We rightly recognise that crimes motivated by racism or homophobia are especially serious and that those who commit them should face harsher sentences. When we do not extend equal treatment to those who target women simply for who they are, it is little wonder that many women do not feel the police take seriously the violence and abuse they face. The Government agreed earlier this year to ensure that all police forces do this, and we await implementation. Yet, as the hate crime co-ordinator in north Yorkshire told us, without the courts following this up through their sentencing, the impact of this policy is limited.
Amendment 219 would ensure that our courts reflect this hostility in determining the sentence someone receives. It uses the same logic as other forms of hate crime, such as religion, race or sexual orientation. It would insert “sex or gender” into Section 66 of the Sentencing Act. I know some colleagues will ask about this wording. First, it ensures that crimes motivated by hatred towards either men or women for being men or women would be recognised as such, but make no mistake, the evidence shows that women are overwhelmingly the victims. In Nottinghamshire and Avon and Somerset, 90% of victims reporting were women. In Devon, it was 80%.
Secondly, this means our focus is on the perpetrator and not the victim. Currently the CPS says a hate crime is:
“Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice”.
Perception matters in hate crime. Whether someone is born a woman or becomes one, if they are targeted for being a woman, then being able to record that motivation will help tackle the cause and find those responsible for the harm. To try to exclude some women from this or set out different criteria for this particular type of hate crime is to give perpetrators a free pass. It risks valuable information about offending patterns being missed and potentially gives perpetrators a chance to further demean a victim by claiming they cannot experience misogyny because they are trans.
We already recognise that someone can be a victim of more than one type of hate crime, expect if the part of their identity being targeted is their being a woman. This is about respecting the victim and how they feel that they have been targeted, rather than demanding that they fit a specific tick-box. Muslim women may be victims of hate crime because they are Muslim and because they are women. Some 42% of black and ethnic minority women aged between 14 and 21 report experiencing unwanted sexual attraction and attention at least once a month. Many women and girls with intellectual disabilities also experience abuse for the dual reasons of their disability and their sex or gender.
The Government previously defined gender as part of the Gender Recognition Act reform consultation. Again, the CPS notes:
“There is no legal definition of hostility so we use the everyday understanding of the word”.
With any hate crime, the police and the CPS gather evidence and present it to the courts for them to decide whether it meets that everyday understanding. This amendment would require them to present evidence about the perpetrator because what matters here is holding the perpetrator to account, not debating the status of the victim. I do not want to be too presumptuous but, when my noble friend the Minister responds, she may say that she will wait until the Law Commission review of hate crime is completed. That is why this is more of a probing amendment. The review has been ongoing since 2018 and, in its draft recommendations, supported this proposal. Should it publish its final report, we could be informed by its work on Report. However, if it does not, this amendment would mean that we would not lose the opportunity the Bill offers to help tackle violence against women.
Indeed, a Law Commission review is no guarantee of action being taken. Since 2010, more than half its reviews have never made it on to the statute book, with many never even receiving a response from the Government. This includes the 2014 review of hate crime legislation, which is still awaiting a ministerial response. Even if the commission’s current review is published shortly, as promised, we may have to wait a year for the Government’s response, which could require further consultation. We would then have to wait for another legislative opportunity to be given parliamentary time for a new Bill to go through its various stages.
Women have been waiting my whole lifetime for action to be taken on these matters. There have already been 3 million more crimes committed against women since the Law Commission was asked to review the law in this area. Every year, we delay closing this gap in our hate crime laws. I understand why more women question whether the Government are serious about keeping them safe. The evidence shows that this policy is not a silver bullet for the problems with policing and the courts, but it is progress and best practice. The time for waiting is over; now is the time for doing. The women and girls of this country deserve nothing less. I beg to move.

Lord Polak: My Lords, I am pleased to join my noble friend Lady Newlove and the noble Lords, Lord Ponsonby and Lord Russell, in proposing this simple but effective amendment, which would ensure individual protection against hostile aggravations and offences based on sex or gender.
The noble and learned Lord, Lord Judge, a former Lord Chief Justice, explained that adding sex or gender to the list is consistent with the statutory provisions in the Equality Act. If we are to have a statutory list, sex and gender should be expressly included. He voiced his surprise that the legislation omitted this category of potential victims. It is clear that this amendment would plug a gap in the law and ensure that all people subject to harassment or violent assault are better protected. As Robin Moira White, a barrister at Old Square Chambers, suggested, if this amendment is not accepted, all those subject to these abuses will continue to remain at risk. Quite plainly, this amendment is a catch-all clause; it is designed to protect everyone.
To quote a letter kindly written to me by the noble Baroness, Lady Hunt of Bethnal Green,
“this amendment provides comprehensive coverage for all women. This is about Sarah Everard, and many nameless others.”
A slew of tragic events, most recently the brutal murders of Sarah Everard and Sabina Nessa, continue to strike fear into young women who just want to get home safely. It is our duty to ensure these protections and we can help by including sex and gender in the Bill. It should be a given right that every individual can arrive home safely after a day at work or simply meeting friends at the pub. This amendment is just one way of ensuring that everyone, regardless of their sex or gender, is protected. It is our duty to ensure that what happened to Sarah, Sabina and countless others does not happen again. I am certain that this amendment goes some way towards achieving that important aim.

Lord Russell of Liverpool: My Lords, I support this amendment to which I have added my name, tabled by the noble Baroness, Lady Newlove, whose statement was typically eloquent. I will not say that I rise “briefly”, since earlier today almost every noble Lord who said that went on to speak at length.
This amendment is essentially a continuation of a discussion that the Minister will remember extremely well from springtime, when we were talking about the Domestic Abuse Bill and misogyny in particular. That was probably the first time in this House that we had ever really had discussions about misogyny. Eight months is a very long time when it comes to domestic abuse. Now every noble Lord is aware of misogyny and of how pervasive it is. To some extent, those eight months have helped the case for an amendment such as this.
On 17 March, as the noble Baroness, Lady Newlove, mentioned, the Minister announced that the Home Office will require all police forces in England and Wales to record crimes, primarily against women, that they regard as misogynistic in intent. We were told that this would happen by autumn. I have checked on a search engine when autumn officially ends and, much to my surprise, it ends on 21 December, which seems rather late. Therefore, the Government have a little more time to deliver, but if the Minister cannot tell us this evening, can she please come back and tell us when the guidance that will be given to police forces to collect this data—systematically and consistently, which is the most important thing—will be available?
This morning I asked a very senior police officer, a lady who is on the National Police Chiefs’ Council, if she knew when it was coming. She did not but basically said, “Please get a move on, we are all dying for this to arrive.” Her own police force, one of the largest in the country, has systematically rolled out domestic abuse training for the vast majority of its officers, which has been extremely well received. They are absolutely primed to receive this guidance when it arrives, so please can we get a move on and please can we have a commitment, either at the Dispatch Box later or in writing, on exactly when we can expect this? If this very senior police did not know, I certainly hope that the Minister does.
This amendment has the virtue, above all, of brevity and great simplicity. It will probably not surprise noble Lords that the person behind the brevity and clarity, of which he is very much in favour, is the noble and learned Lord, Lord Judge. He is unable to be with us this evening. I think he hoped that brevity would mean just that when noble Lords said that they would be brief. Unfortunately, he was disappointed and so cannot be here, but we can assume that the thrust and nature of this amendment has a great deal to do with his guidance and his input. To use his phrase when we were talking about this, “Let’s just go for the jugular”. That is what this is about.
As other noble Lords have mentioned, the Equality Act 2010 defined nine different protected characteristics. This amendment specifically would equalise sex and gender with the other key innate characteristics: sex, sexual orientation, gender reassignment, race, disability and religion or belief. As noble Lords have said, it is designed to protect anybody and everybody; it is totally inclusive. It is not defining people by what gender they have, they chose to have, they think they have or were born with; it is designed to protect everybody.

Lord Hunt of Kings Heath: The noble Lord mentioned gender reassignment, but the amendment does not say “gender reassignment”, it says “gender”.

Lord Russell of Liverpool: If the noble Lord looks at the amendment, it says
“or presumed sex or gender”.
That is as presumed by the perpetrator.

Lord Hunt of Kings Heath: My Lords, my point is that in arguing for the amendment the noble Lord mentioned the protected characteristic of gender reassignment, not gender.

Lord Russell of Liverpool: I think I was quoting from the Equality Act, but if I was not—the noble Lord here says I was right, so if one looks at the Equality Act and the protected characteristics, that is one of them. If I am wrong, I apologise in advance.

Baroness Noakes: The noble Baroness, Lady Falkner of Margravine, is no longer in her place. Gender is not a protected characteristic under the equality legislation. Gender reassignment is.

Lord Paddick: That is exactly what the noble Lord said. He said that gender reassignment is a protected characteristic under the Equality Act and gender is not, which is what this amendment addresses.

Lord Russell of Liverpool: I thank the noble Lord. If anyone else wants further clarification, I am sure other noble Lords who have read the Equality Act will come in and back me up.
A particular point that I think my noble and learned friend Lord Judge would have made, were he able to be with us, is that he is clear that this amendment and change to the Sentencing Act would be welcomed by the judiciary, who are often asked to make quite difficult judgments. This would make their ability to do so a great deal easier.
There is another important point. The noble Baroness, Lady Newlove, mentioned how some police forces around the country voluntarily started recording alleged misogynistic acts, primarily against women. We had a briefing last week, which I attended online, in which two of the police forces involved—Nottinghamshire Police and South Yorkshire Police—gave evidence, several years on, about how effective that was. The thing that came out clearly, which they find very frustrating, is that having amassed this information and passed it on to the Crown Prosecution Service, the way in which the CPS deals with the information and data that has been recorded and given to it as additional evidence when considering or making prosecutions is wholly inconsistent between different offices and areas. One of the virtues of inserting this amendment into the Sentencing Act is that it would make it crystal clear to the Crown Prosecution Service that information must be part of any case that is potentially brought before the judiciary, because this data is required to be considered when thinking about sentencing.
I commend this amendment to the Committee. It is simple, unambiguous and protects everybody.

Lord Falconer of Thoroton: The following characteristics are protected under the Equality Act: age—something else that we do not need to worry about; gender reassignment; and sex. There are others, but those are the three. Sex being a protected characteristic means that you are entitled not to be discriminated against on the ground of your sex, whether you are a man or a woman. That means that if you are a transgender woman, you will be entitled to be protected on the grounds of sex because you are a woman, and on the grounds of gender reassignment. So, the noble Lord says that gender is not a protected characteristic under the Equality Act, but a person is entitled, as one would expect, not to be discriminated against because of their sex.

Baroness Noakes: I thank the noble and learned Lord, Lord Falconer of Thoroton, for his lesson in equalities law. My Amendment 219A was degrouped from Amendment 219 late last week. While it is drafted more broadly than Amendment 219, I tabled it to address the very same issues covered by Amendment 219. I therefore believe that, for the convenience of the Committee, I should speak to my Amendment 219A now. I hope that the other noble Lords who have  added their names—the noble Baronesses, Lady Ludford and Lady Grey-Thompson, and the noble Lord, Lord Hunt of Kings Heath—will do so as well. On that basis, I will not move Amendment 219A in the next group. I hope that, given all the amendments left still to be debated, the Committee will welcome this.
My Amendment 219A, like Amendment 219, does have cross-party support, so the issues raised by both amendments are not party-political in any sense. Indeed, I find myself in the unusual position of being on the same side of the argument as the noble Baroness, Lady Ludford; neither she nor I ever thought that we would be in that position. I have two main problems with Amendment 219, the first of which is directly addressed by my Amendment 219A. Amendment 219 pre-empts the work of the Law Commission, which, as we have heard, has been working on hate crime for some time now. Its consultation document runs to over 500 pages, with over 50 dedicated to sex or gender.
The Law Commission has received many thousands of consultation responses and is now working on its final position. I believe that its work should conclude before we legislate in this area, and my Amendment 219A gives the Government a regulation-making power to amend Section 66 of the Sentencing Act 2020 to implement the Law Commission’s recommendations. That gives the Government, if they agree with and accept the recommendations, the fastest possible implementation route. The Law Commission’s final recommendations may well be controversial and therefore would not qualify for the special procedures for Law Commission Bills that we use in your Lordships’ House, if primary legislation were the route taken. Amendment 219A therefore uses the draft affirmative procedure to enable some additional parliamentary scrutiny.
I believe that it would be wrong for Parliament to anticipate the final views of the Law Commission. There are different views on both the principle and the substance of the extensions to the hate crime laws, and noble Lords would be wise to wait for the Law Commission’s final recommendations, rather than proceed on the basis of its provisional views.
On the extension of hate crimes to sex, the Law Commission was clear that it believed that two of its criteria for amending the hate crime legislation—demonstrable need and additional harm—were met, but it was far less clear that its third criterion of suitability was met. To mitigate that, its consultation includes some very significant potential carve-outs, covering, for example, domestic abuse and sexual offences so that, if hate crime were extended to sex, the very crimes that I know some noble Lords are particularly concerned about might not be included in the Law Commissioner’s final recommendations. This is not an area where there is a settled view about what should be done.
My second problem with Amendment 219 is a substantive one about whether, if hate crime laws are extended to sex, they should be—

Lord Falconer of Thoroton: Does the noble Baroness know when the Law Commission might produce its final report and what the timetable thereafter  would be—for example, how long there would then be before the Minister has to respond and how long thereafter before there would be some provision in relation to it?

Baroness Noakes: I think that was a trick question from the noble and learned Lord, Lord Falconer of Thoroton.

Lord Falconer of Thoroton: It is not a trick question; I would have thought that that piece of information might be quite important to evaluating her amendment.

Baroness Noakes: I will tell the noble and learned Lord what I know, which is that the Law Commission said that it hopes for a final report by the end of this year. It is then normal to give a period of time for the Government to consider their response and then there is a period after that for deciding on a legislative route.
My amendment offers a fast way through. If the Law Commission makes certain recommendations and the Government decide to accept them, my amendment gives the Government the power by regulations to amend Section 66 of the Act to achieve those recommendations. That is the best I can offer. I am sure the noble and learned Lord, Lord Falconer of Thoroton, can give me a long lecture on all those Law Commission studies that have never ended up in law and the length of time taken. But this is another good reason why we should not, I think, proceed in haste on this.
I was about to move on to the second reservation I have with Amendment 219, which is whether, if hate crimes were extended to sex, they should also include gender. Amendment 219 includes the formulation “sex or gender” and that was, indeed, the Law Commission’s provisional view. However, its conclusion was rather more tentative than some of the other conclusions in the consultation document, and I think this is an area where its final views will be particularly important. In its very large consultation document on hate crime, it did not spend very much time on whether gender should be included as an addition to sex, and I suspect there will be a fuller examination on the basis of the responses to its consultation.
Sex is a concept that is easily defined: it is binary, based on biological reality and recorded on everyone’s birth certificate. Sex, as we have been debating, is a protected characteristic in equality legislation. Gender, on the other hand, is a social construct. It has no ready legal definition and is most definitely not a protected characteristic. While gender is sometimes used in legislation, it has in the past genuinely been as a synonym for sex. However, I believe that it is increasingly problematic for the word “gender” to be used in that way because it is being used by those who claim that gender is different from—and sometimes more important than—sex, and it is not binary. Some describe gender as a spectrum, some say that there is a finite number of genders, but there is no consensus on how many genders there are, with claims in excess of 100 genders.
I can illustrate how difficult the use of “gender” is becoming from something I discovered called nominalgender. Nominalgender means,
“a gender where the person’s gender is so much just them that no one else can even experience it. Most nominalgender people will define their gender as a mashup between other genders of a certain kind (like beegender, angelgender, etc) but it’s not a multiple gender, it is one”.
Who knew, my Lords? This new lexicon of gender is part of a gender identity theory. It is a controversial issue and has not hitherto found its way into legislation for very good reason. I believe that legislating for hostility towards gender would make for very uncertain law. The use of the word “gender” has moved well beyond an attempt to achieve drafting neutrality and has started to acquire a very different meaning.
There was discussion earlier about where transgender fits in. I do not believe adding “or gender” is necessary to meet any needs of those in the transgender community. Hostility related to transgender is already included in hate crime legislation. If the term “sex” was added to Section 66, hostility towards, say, a transgender woman would be automatically covered, either because she is transgender or because she is presumed to be of female sex. Therefore, there is no need for the ambiguity of “gender” to be introduced into the definition of the hate crime because there were no people excluded from that.
I have deliberately not addressed the substance of Amendment 219, which is whether misogyny should be added to the list. I am personally not convinced that the case has been made, but I did not table Amendment 219A to oppose the extension of hate crime to sex. Indeed, my amendment would allow a fast-tracked route to legislating for it if that were the outcome of the recommendation from the Law Commission. I believe that Parliament would be negligent if it rushed through a solution without waiting for the Law Commission to report on this difficult subject. I know that many noble Lords feel strongly about misogyny, as I do as a woman, but I entreat noble Lords not to legislate in haste.

Lord Paddick: Could I ask the noble Baroness a question on her remarks? She said that sex was binary, male and female, as recorded on birth certificates. How does she account for people who have a gender recognition certificate, who are able to change the sex on their birth certificate in those circumstances?

Baroness Noakes: My Lords, that is dealt with by the Gender Recognition Act. In that case, the birth certificate is altered and for many purposes, though not for all, that person is treated as a woman.

Baroness Warwick of Undercliffe: My Lords, I rise to support Amendment 219 and to reinforce all the powerful arguments made by the noble Baroness, Lady Newlove. I am not a lawyer, but it seems bizarre that sex and gender have explicitly not been recognised in existing hate crime legislation. Crimes motivated by hostility to disability, transgender identity, race, religion and sexual orientation are all recognised, but not those motivated by sex and gender. Yet, in a report published in January this year by UN Women UK, 71% of the 1,000 women polled had experienced sexual harassment in a public place, rising to a staggering 97% of women under the age of 25.
This is made worse by the sad fact that there is widespread scepticism among women and girls about reporting violence and abuse to the police because they have no confidence that their claims will be acted on or even taken seriously. Violence against women and girls does not occur in a vacuum, of course. Hostility towards women and girls creates a culture in which violence and abuse is tolerated and repeated. That culture has to be changed, so a reform to legislation, which this amendment proposes and which I hope the Government will support, must be accompanied by a transformation of attitudes within the police.
I believe that there are encouraging signs that this is happening, albeit slowly. I was fortunate to attend the briefing that has been mentioned on this amendment given by the former chief superintendent of police for Nottinghamshire, Sue Fish—a pioneer of this approach —and Stuart Henderson, North Yorkshire Police’s hate crime co-ordinator, who is currently delivering this policy. It was absolutely fascinating to learn how much of a difference can be made when the leadership of the force is committed to driving a policy forward. A number of other forces are doing the same, and I commend this approach to the Metropolitan police force as it struggles to respond to the tsunami of criticism on gender-based hate crimes.
Because not all police forces have signed up, there is no consistency of reporting or approach to these crimes. That is why the amendment is necessary: to ensure that every woman and girl right across the country can feel confident that the role of misogyny in what they experience on a daily basis will at last be taken seriously and dealt with appropriately. It is also necessary because it would require police forces to record instances of motivation by hostility to the victim’s sex or gender, enabling them to monitor much more effectively the incidence of these crimes and so address and prevent them. Evaluation of this approach in Nottinghamshire showed improved victim confidence to come forward and report crimes, and benefits to the local police in their efforts to combat these crimes. It is a great tribute to Sue Fish that she persisted in pursuing the need for this change, and to Nottinghamshire Police for embracing it as pioneers.
Finally, I am aware that the Government have asked the Law Commission to look at this, and it is due to report imminently. I hope the Government will not use that as an excuse to kick this into the long grass; even if the Law Commission reports soon, too many of its reports are ignored by the Government and not implemented. In replying today, I hope the Minister will acknowledge the urgency of this issue and commit to concrete measures, as set out in the amendment, to address it speedily.

Baroness Grey-Thompson: My Lords, I assure my noble friend Lord Russell of Liverpool that I intend to be brief. I speak to Amendment 219A, to which my name is attached. Sadly, as the noble Baroness, Lady Newlove, has pointed out, violence against women and girls is still a major issue in this country. I do not think a week goes by without us reading or hearing about some terrible act.
A few years ago, I, like many others, would have conflated the words “sex” and “gender”. We discuss the gender pay gap, where actually we probably mean a sex pay gap. It has become clear to me that, as language evolves, sex and gender mean very different things. The noble Baroness, Lady Noakes, has outlined this amendment very clearly, but I also believe that adding “gender” is unnecessary, as it could add further confusion to an area of law in which existing terminology is inconsistent and at times contested. Just in the short debate we have had tonight, we have seen that there is plenty more to discuss on the definition. I think we all agree that the protection of all people is important, and we should promote dignity, but that should be done without confusion.
I believe that we should wait for the Law Commission report, which I hope will be published soon, because it is a significant piece of work which will help inform the debate further.

Lord Hunt of Kings Heath: My Lords, time is against us, so I will be really brief. From all our debates so far, I am convinced that the issue of inconsistent policing is the one where I would put most of my money in terms of improving the situation. Her Majesty’s Inspectorate, which looked at the way police forces dealt with violence to women and girls, was very persuasive about the hugely patchy approach of police forces.
As far as the Law Commission is concerned, anyone reading its work will see that it is complex and that it did not come to an easy conclusion when it gave a provisional view that it would be helpful to add to the categories in the way suggested. Most notably, it identified the risk that hate crime laws could prove unhelpful in certain contexts such as domestic abuse and sexual offences. It then went on to quote evidence from the Fawcett Society, which argues that all sexual and domestic abuse offences committed by men against women should be understood as inherently misogynistic. There is therefore a risk that sex-based hate crime might disrupt this understanding because it would require juries to seek express evidence of misogyny in these contexts, potentially causing some offences to be non-misogynistic where there is insufficient evidence of this.
I am not qualified to comment on the detail, but it is clear that this is a complex issue, as are the issues of sex and gender. Given that the Law Commission will report by the end of the year, the key thing we want to hear from the Minister is that the Government will take the report seriously and it will not join other Law Commission reports in the long grass.

Baroness Ludford: My Lords, we are all impatient for the Law Commission report, but I believe it is best to await it before deciding how best to frame any law on hatred towards women. Sex and gender have become conflated in ordinary speech, even in legislation, but they are not the same. While “sex” has a clear meaning in law, as defined in the Equality Act, the term “gender” does not, and is taken to mean social roles or stereotypes associated with someone’s sex, and that is too tenuous, at least at this stage, to be a legal definition.
If the intention of adding “or gender” is to ensure that legislation also covers hate crimes perpetrated towards trans women, it is unclear why the law would  not catch a crime directed towards a trans woman on the basis of presumed sex. In addition, crimes directed against someone based on their transgender identity are already covered by hate crimes legislation.
Going back to the conflation and confusion of sex and gender, I quote from a statement by the Equality and Human Rights Commission in 2018:
“‘Gender’ refers to socially constructed roles of women and men and/or an individual’s conception of their identity. The term is often used interchangeably with ‘sex’, partly in recognition that much of the inequality between women and men is driven by underlying social and power structures rather than by biological sex. Although the Equality Act protects people from discrimination because of their sex, other UK legislation (such as the regulations requiring employers to publish their gender pay gap) refers to gender. This may cause confusion in some circumstances.”
The EHRC went on:
“To avoid any ambiguity, we are reviewing our use of language across our website and publications to ensure clarity and consistency. However, it is important to note that any mistaken or structural use of the term gender does not affect how the law works in practice.”
I have not had the chance to check through all the EHRC publications since 2018, but those were wise words.
I want hate crime legislation to be extended to misogyny. I very much hope the Equality and Human Rights Commission continues its pursuit of clarity and consistency, and I was interested to hear the remarks of the noble Baroness, Lady Falkner. I cannot see that conflating sex and gender, as in this amendment, goes in the right direction. We should wait to hear what the Law Commission advises.

Baroness Fox of Buckley: My Lords, I am of a mind to be opposed to the introduction of a misogyny hate crime, but your Lordships will be delighted to know that I will not be sharing my broader thoughts with the Committee at this late hour. However, there are problems that we need to be clear about before we can even have this conversation. What is our definition of misogyny here? We just assume that we are talking about it as a hatred of women, but it is not straightforward to legislate against hatred of women in 2021, when there is such a toxic debate about what our definition of a woman is. What is a woman, and who is and is not a woman? We heard a very lively discussion earlier; we in this place do not necessarily agree.
We know that somebody can simply declare themselves a woman, regardless of biological reality. We know that the debate about whether only women have cervixes has scuppered leading politicians, who seem unsure about biology in that regard. I do not say this to be glib, in case the noble Baroness, Lady Chakrabarti, thinks I am trying to stir up trouble again. I do so because it seems a genuine issue that the conflation of sex and gender—I know that the amendment does not do that; it separates them out—means that “misogyny”, as hatred of women, is not straightforward at the moment.
I also want to know which or what misogyny this amendment is trying to address. If you erase, for example, sex-based rights, which is what some feminists think is going on at the moment, is that a misogynistic outlook? Some feminists certainly argue that it is. There is certainly a huge amount of visceral and vile  hatred thrown at gender-critical women, meted out by some of the gender and trans extremists—not by trans people in general, I hasten to add, but the kinds of people who drove Professor Kathleen Stock out of her job at Sussex University. They sounded misogynistic to me, but are they the target of this amendment? I am drawing attention to the fact that wanting a misogynistic hate crime does not clarify to me what the amendment is trying to do.
I understand that what I have said is contentious and that not everybody here will agree with some of the points I have made even so far. In this context, is it appropriate to get the law, let alone the police on the ground, to try to untangle what is a very toxic discussion in society and implement this? I do not know how putting that on to the police will help women.

Lord Russell of Liverpool: Would the noble Baroness perhaps accept that if she was to speak to some of the senior police officers, men and women, who have to deal with the victims of hostility and aggravated crimes, largely motivated by misogyny, and ask them what they think misogyny is, she would get a very clear response? They interact on a day-to-day basis with people who are direct victims of it.
While it is very interesting to have a “Moral Maze”-like discussion at a theoretical level, to be clear, what those of us proposing this amendment, including the noble and learned Lord, Lord Judge, want, is to do something now for the victims experiencing hostility based on misogyny. We should not be talking in airy circles about this; we need to do something.

Baroness Fox of Buckley: I will try to avoid airy circles. Not long ago, I was invited to speak to a gathering of police officers of various ranks on the issue of hate crimes and I can safely say that it was a 50/50 split. As an aside, quite a number of the female officers there were supportive of me and my position, so this is not an airy-fairy, “Moral Maze” position, although it does try to have some principle.
I was about to go on to talk about policing. I understand that one of the reasons there is a sense of urgency about making misogyny a hate crime is in response to horrendous and high-profile murders and rapes of women. We are all mentioning Sarah Everard, but there are many more. I wonder whether, in fact, framing violence against women through hate will solve the problem that it says it will tackle. As far as I can see, we have laws against indecent exposure, stalking, voyeurism, sexual assault, domestic abuse and rape. They are criminal offences, largely serious, and I do not understand why an additional law would act as a further deterrent or reassure women—I do not get that. If, as some argue—I agree with them—women are having problems gaining justice for those very acts in the courts at present, why would hate crime as an aggravated offence make any difference if the crimes in question are not being policed, investigated or prosecuted satisfactorily in the first place?
When I read the literature on misogyny and hate crimes—this was mentioned by the noble Baroness, Lady Newlove—the theory goes that minor incidents of gross sexist behaviour are misogynistic and indisputably  part of a continuum that will lead to more serious crimes. I worry, however, that there is a danger there of relativising the horrors of rape and murder and tangling up the police in events that are not as serious, meaning that they take their eye off the ball in what I think they need to be doing: policing the streets, protecting people, prosecuting and so on. I am worried that this will cause a distraction for the police from doing the very job they need to be doing.
To use one example—I have been involved in talking to people in the area—the organised networks of male grooming and the systematic abuse and rape of vulnerable young women in Rochdale and Rotherham were largely ignored by the authorities, downplayed and continually not discussed. That is what we should be discussing here. Labelling the abuse as misogynistic does not seem to me to help; I just want the authorities to do the job of investigating when women are abused. That is far more important.

Baroness Bennett of Manor Castle: My Lords, I rise very briefly—the noble Lord, Lord Russell, will be pleased to know—to offer the Green group’s support for Amendment 219 in the name of the noble Baroness, Lady Newlove. I shall simply make two points, one of which draws on the recent intervention by the noble Lord, Lord Russell.
First, the noble Baroness, Lady Newlove, referred to the origins of this amendment. Nottinghamshire Police Force has been a pioneer in this area. In my contribution on this subject on the Domestic Abuse Bill, I looked back beyond that. If you look at the history of how Nottingham police came to be doing it, it began with a group called Nottingham Citizens and a survey it conducted among the people of Nottingham. That led to a conference held at the Nottingham Women’s Centre, which informed the police and police action. This is something that very much grew from the grass roots up. In response to many of the contributions from people advocating Amendment 219A instead: this has been proven to work. It is there demonstrably on the ground. The fact is there.
For my second point, I refer to the author Caroline Criado Perez and quote her:
“There is enough data to know that men who kill women do not suddenly kill women, they work up to killing women … If only we were to listen to women and pay attention to the misogyny and aggression and violence that they deal with on a daily basis.”
That is what Amendment 219 seeks to do. The noble Baroness, Lady Noakes, suggests that we have to wait and wait and wait. I would suggest we have been waiting lifetimes—centuries—for this action. We have a proven model that has been shown to work. Let us put it into effect.

Baroness Chakrabarti: My Lords, I congratulate the noble Baroness, Lady Newlove, her noble friend Lord Polak, my noble friend Lord Ponsonby of Shulbrede and the noble Lord, Lord Russell of Liverpool. I want to focus on the amendment, not on a wide-ranging debate about everything that is wrong in relation to sex and gender or discourse in society.
I want to congratulate the noble Baroness because it is a simple and focused amendment. The word “misogyny” does not even appear in it. It is not thought crime. It is  not even a speech offence. It follows a well-trodden path of adding protected characteristics or certain characteristics to a list. Hostility towards people with these characteristics will be an aggravating factor in a crime that already exists and has already been proven or admitted beyond reasonable doubt in a court. I say to noble Lords who are worried that I will come back to their fears and try to assuage them.
It seems totally unconscionable to me that, for example, race and religion have been aggravating factors in the code for so long but not hostility towards women. Hence, in the waiting millennia—certainly decades—since the code, these factors have been added. Some people will say that we never needed to add aggravating factors at all, and we could always trust the courts to get it right. Whether that is true or not—and I am not sure it is—we have a well-trodden system, and it is unconscionable, particularly at this moment when women and girls are feeling the way they are, that we should say we must wait because it is all very complex. If it is not complex in relation to race, religion and sexuality, it is not complicated in relation to sex. These are people who have already committed a criminal offence.
Why add aggravation at all? If somebody gets drunk on a Friday night and gets into fights with people they come across, that is bad enough. But if they go out after a few drinks on a Friday night to single out a particular group or a particular type of person based on their race or religion, or go out beating up women, that is an additional public policy problem, and that is why aggravation in relation to the group is a matter for this Committee and for policymakers.
I want to address the concern of the noble Baroness, Lady Noakes, about sex in general. I have always understood sex and gender to be different things. I was brought up to believe that sex is more biological and gender is more the construct, but this debate will rage on. Noble Lords should remember, however, that this amendment is dealing with offences that have already taken place, and certain people have been targeted for these offences. With respect, therefore, we are not talking about other areas of public service provision: we are talking about offences that might be violent or sexual, but they are offences that have taken place.
I do not know what the approach of the noble Baroness, Lady Noakes, is, for example, to people who call themselves non-binary. I do not need to know. I am sure that she would agree that if people declared themselves to be that way, and people beat them up for that reason, that would be a problem. We do not want to live in a society where certain people are singled out for violence. That should be an aggravating factor. I am minded, perhaps, to say that it should be possible to be open-ended about these things, but we have not got to that place. Perhaps the Law Commission will in due course, but we are where we are today, and the fastest way to remedy this terrible injustice to women is to add sex and gender immediately and then wait for the Law Commission’s report.
If the promoters of Amendment 219A think that there may be other groups that need to be added and should not be left out, they can promote their amendment in addition to the one tabled by the noble Baroness,  Lady Newlove. They certainly cannot suggest that it is an alternative, because sometimes the law needs to send a signal as well as work. This Bill is before us and we do not know when another one will come our way. We do not know when the Law Commission will report; we do not know what the reception to that report will be; we certainly do not know whether another Bill will come our way. How can we possibly, in good conscience, leave a status quo where an assault aggravated by race is covered, but an assault aggravated by the offender targeting a woman is not covered? I certainly cannot find that in my heart or in my conscience.

Lord Paddick: My Lords, I thank the noble Baroness, Lady Newlove, for so ably and comprehensively introducing her amendment. We return to an issue that we debated during the Domestic Abuse Bill, making misogyny a hate crime. From the Front Bench, we support Amendment 219 and oppose the alternative Amendment 219A.
When we debated the Domestic Abuse Bill, I talked about the appalling kidnap and murder of Sarah Everard by a serving police officer, and, as the noble Baroness, Lady Newlove, has said, many more women have died as a result of male violence since then. As the chair of the Police Federation of England and Wales said a few weeks ago, there is a problem with sexism and misogyny in the police service and in society as a whole. Urgent action is needed. Some changes will take a long time, such as changes to social attitudes and police culture, but some changes can happen now. We have an opportunity with this amendment to make one of those changes now.
I did not support the amendment to the Domestic Abuse Bill because I did not believe that that amendment made misogyny a hate crime. This amendment does. In the Domestic Abuse Bill debate, I suggested, as Amendment 219A does, that we should wait for the Law Commission report on hate crime laws. As the helpful briefing from the office of Stella Creasy MP says:
“Since 2010, more than half of Law Commission reviews have not been implemented at all, including the last review of hate crime legislation in 2014.”
I agree with the briefing’s assertion that this is an area where delay has tangible consequences. The evidence that there is a problem is overwhelming. In the wake of the tragic and horrific murders of Sarah Everard and Sabina Nessa, there is an opportunity to strike while the iron is hot, while public opinion is behind us, and where the issue is high in public consciousness. We need to seize that opportunity with Amendment 219.
I did not support the amendment to the Domestic Abuse Bill because I believed that it was the wrong Bill, where one third of domestic abuse victims are male. I believed that it was the wrong Bill because domestic abuse is one of the worst possible crimes, because if there is only one place where someone can feel safe, it should be in their own home—that domestic abuse could not and should be treated as any more serious than it already is.
I also said:
“If noble Lords or Members of the other place do not think we should wait for the Law Commission’s report, there is an imminent legislative opportunity to make sure that hatred of women is treated in every way as a hate crime. We could work  cross-party to amend the Police, Crime, Sentencing and Courts Bill, which is being debated in the Commons, to make misogyny a hate crime in every sense of the term. Even if the noble Baroness is not convinced by the Government’s concession, we do not need to rush this amendment through now when the ideal legislative opportunity is at our fingertips.”
The ideal legislative opportunity is at our fingertips—it is here and now, and we should do it.
I have to say that I found the arguments in the briefing that noble Lords have been provided with less convincing on the issue of sex and gender. I refer again to what I said on the Domestic Abuse Bill:
“If the Government only require police forces to record crimes where the victim perceives them to have been motivated by hostility based on the victim’s sex … it does not go far enough. Current hate crime offences are recorded when anyone perceives the offence to have been motivated by hatred, not just the victim. The amendment includes sex and gender, and this is important. If an offender believes the victim is a woman, and anybody perceives that the offence was motivated by hatred of women, it should be recorded as a crime motivated by hatred of women. It makes no difference … whether the victim is a transgender woman.”
There may of course be circumstances where an attack on a transgender woman might be more appropriately recorded as a transphobic hate crime, but:
“Where the victim or a witness believes that they were attacked because they were a woman because they perceive the offender believed the victim was a woman, it should be recorded as such. The use of the term “sex” on its own may exclude some offences”.—[Official Report, 17/3/21; col. 363-64.]
It has been argued that, legally, such offences would not be excluded, but we need to consider the practical implications of excluding gender, as Amendment 219A seeks to do.
There are some who believe that trans women are not women but men. Some of those people are very strident in asserting that view. I want to avoid that debate if possible, but the fact is that people are saying this, and that view may influence victims, witnesses and police officers. Some people may not accurately report crimes motivated by misogyny if they believe that this does not apply to trans women. If we are to protect women and record all crimes motivated by misogyny, gender must be included. A proposal such as Amendment 219A, which makes life more dangerous for some women, makes life more dangerous for all women. From the Front Bench, we support Amendment 219 and oppose Amendment 219A.

Lord Ponsonby of Shulbrede: My Lords, the Labour Party has been at the forefront of calls to make misogyny a hate crime. Former Nottingham police and crime commissioner Paddy Tipping ensured that it was recorded as a hate crime there, and we have heard from my noble friend Lady Warwick about his work with Chief Constable Sue Fish in that regard. During the passage of the Domestic Abuse Act, we secured the piloting of the recording of misogyny as a hate crime among crimes of violence against the person, including stalking, harassment and sexual offences. Police forces recording misogyny as a hate crime is an important step forward, but we want to go further by including sex and gender in the list of protected characteristics in hate crime laws for the first time.
I shall speak only very briefly because of the hour, but I want to conclude by saying that I thought that my noble friend Lady Chakrabarti encapsulated the  decision before us. We in the Labour Party support Amendment 219 and oppose Amendment 219A. As my noble friend said, first of all, this relates to where an offence has already taken place. Secondly, it is already the case that race and religion are aggravating factors, and they have been for many years. We believe that misogyny should be added as an aggravating factor when sentencing.

Baroness Williams of Trafford: My Lords, I thank my noble friends Lady Newlove and Lady Noakes for tabling their amendments. Both have highlighted the importance of tackling violence against women and girls, as have other noble Lords. We rightly share this priority.
These amendments provide us with an opportunity to discuss the important issue of hate crime, and also to pay tribute to the work of the Law Commission. It performs an important service, considering complex matters of law and making recommendations for change and simplification. This very valuable function helps to bring coherence to complicated and technical areas of law.
The Government share the opinion that all hate crimes are a great injustice and should be dealt with by the full force of the law. I know that noble Lords are aware of the breadth of activity to combat the scourge of hate crime, but in the interests of the hour—I do not think I have ever started my first group of amendments at 10 past 12 at night, so this is a first—I shall consider the amendments before the Committee.
As I have stated in the House before, in 2018, as part of the updating of the Government’s hate crime action plan, we asked the Law Commission to undertake a review of current hate crime legislation. This specifically included concluding a review as to whether other protected characteristics, such as sex, gender and age, should be included. The review’s terms of reference were to review
“the existing range of protected characteristics, identifying gaps in the scope of the protection currently offered and making recommendations to promote a consistent approach.”
As noble Lords have said, the Law Commission’s final report is now imminent. It may be published as early as this month, and that of course is a matter for the Law Commission, which is fully independent of the Government. Noble Lords accepted this during the passage of the then Domestic Abuse Bill, and I think we should see it through in the way we agreed.
However, I do not think that we should commit to giving effect to all the Law Commission’s recommendations before anyone—including noble Lords—has even seen and studied them. It would be inappropriate for any Government to sign what is effectively a blank cheque.
In particular, I know many people hope that the Law Commission will recommend—if I can use the popular parlance—that misogyny should be made a hate crime. To those people, and indeed to any noble Lord, I would say, “Wait and see.” We do not know what it will recommend, and nor should we at this stage. As an independent body which considers and weighs up the evidence, the Law Commission will come to its own conclusions. We will only know what the commission’s advice is when the final report is published.
As the noble Lord, Lord Hunt of Kings Heath, pointed out, where the Law Commission suggested it was minded to consider adding sex and gender to hate crime legislation, it did so only in a consultation. But the purpose of a consultation is precisely to consult. The Law Commission will also want to consider what consultation responses have said and to shape its conclusions accordingly. Whatever the commission’s inclination might have been in 2020, we cannot assume the commission’s final position until it has been published.
It would be premature to accept Amendment 219 and negate the whole purpose of asking this distinguished, independent organisation to give full and proper consideration to the whole construct, purpose and design of hate crime legislation. What is the point of the Law Commission in the first place? I know that people have been critical of it, but I think it is a very useful tool to deal with certain complex issues.
It would also probably be premature at this stage to accept Amendment 219A. As I have said and my noble friend stated, we cannot pre-empt what the Law Commission will recommend. What I think we can say is that the law is complex and contentious, and that has been reflected in our debate tonight. It seems to me that there is every possibility that the Law Commission will make recommendations that will require primary legislation to implement and I do not think it would be appropriate to make what could be quite significant changes to our statute book through secondary legislation. I dare say that, were such a proposal ever to emanate from the Government, I would expect noble Lords to be critical.

Noble Lords: Oh!

Baroness Williams of Trafford: Yes, noble Lords can take that down and quote it against me.
The noble Lord, Lord Russell of Liverpool, asked me about timelines and when the police were going to start recording the data. As one noble Lord said, we are currently in consultation with the NPCC and forces on how to take that forward. We will ask police forces on an experimental basis to record and identify any crimes of violence against the person, including stalking, harassment and sexual offences where the victim perceives it to be motivated by hostility based on their sex.
In conclusion, significant changes to the law require a full parliamentary process, with the proposals considered by both Houses in the normal way, with all the requisite parliamentary stages. I do appreciate the desire for urgency—I am sure that noble Lords looking at the clock do as well—but I do not think that should be the grounds for changing legislation without full and proper parliamentary scrutiny. Accordingly, I cannot advise your Lordships to pre-empt the Law Commission’s report or to act ahead of knowing what it will recommend. I therefore invite my noble friend Lady Newlove to withdraw her amendment.

Baroness Newlove: My Lords, considering the time, I will try to keep this short—I will not do a Second Reading speech to end.
This has been a really good debate, again; in fact, I think the whole session today has been interesting. I thank the Minister for her response. Obviously, the Law Commission does excellent work and, as she says, we will have to wait and see. What saddens me is that while we consult and have parliamentary Sessions and Governments and everything, the people on the ground need that support system and understanding, and they need the police service and the culture and everybody else to understand the hostility that they face. As a former Victims’ Commissioner, I have met many victims. Sadly, some went to report that they had been raped by their husband and were told, “You’re not the only one tonight, love”. That has really resonated about why it is so important.
Given that it is late, that this is a probing amendment and that, hopefully, we may have something from the Law Commission that we can come back to on Report, for now I beg leave to withdraw the amendment.
Amendment 219 withdrawn.
Amendment 219A not moved.
House resumed.

Social Security (Up-rating of Benefits) Bill
 - Returned from the Commons

The Bill was returned from the Commons with reasons.
House adjourned at 12.18 am.